Thank you for using Brink! These Terms of Service (“Terms”), which together with a Merchant Agreement (as defined below) and other agreed terms and conditions (as applicable), set out your rights and obligations as customer to our e-commerce solution (“Service”, technical description, including specifications, etc., as further set out in the Merchant Agreement) and constitute an agreement between us with respect to the Service. The Service is intended for professional use only. Capitalized words and expressions used in these Terms are defined herein. The agreement is entered between you and Brink Commerce AB, Reg. No.: 559168-0425, a company incorporated under the laws of Sweden, having its registered office at P.O. Box 304, SE-116 74 Stockholm, Sweden (“Brink”, “we” or “us”). “You” or “Customer” means the legal entity (normally a company), as indicated in the Merchant Agreement, which enters into the agreement with us with regard to the Service. The natural person/s representing Customer, hereby represent/s and warrant/s that: (i) they are authorized to bind Customer; and (ii) they agree to the Terms and the agreement on behalf of Customer. Subject to our acceptance/confirmation of a Merchant Agreement, our mutual agreement will become effective, unless otherwise indicated in the Merchant Agreement, on the date when both parties have signed (which may be done electronically) the Merchant Agreement, or, at the latest, when you begin to use or have access to the Service. “Merchant Agreement” means a written Agreement for the subscription of the Service by Customer and accepted by us. Please note that certain technical, commercial, and other requirements and prerequisites (e.g. with respect to third party products or services, including consultancy services for the setup in the Customer´s individual environment) may apply in order for the Service to be fully utilized. Information on how we collect and process personal data is set out in our Privacy Policy, which forms part of the Terms.
1.1
The Service will be deemed delivered by us when we have provided you log-in details to the Account (as defined below). You are advised that you may need third-party consultancy services for setup and adaptation to your individual environment. You acknowledge and agree that you will be solely responsible for the engagement of such third-party service providers (and that we shall in no event be liable for their performance). The Service will be used by individuals which you permit to use/administer the Service (“Users”) via an account (“Account”). You are responsible for Users and their acts and omissions (including compliance with the Terms). You must ensure that all Users keep user IDs and passwords for the Service strictly confidential and that such information is not disclosed to unauthorized persons. You are responsible for the Account and any passwords and must notify us immediately upon any suspected or detected unauthorized use.
1.2
You are granted a right to use the Service solely for your internal business purposes during the Term, as set out below. The right to use the Service also covers your wholly owned subsidiaries or affiliates, as may be agreed between us and as indicated in the Merchant Agreement (“Affiliates”), for as long as an Affiliate remains wholly owned by you or under the same control. You are responsible for Affiliates and must ensure that they (and any User) comply with the agreement. You must also ensure that Affiliates cease to use the Service in the event that they cease to be owned by you or cease to be under the same control. Services may be used by your (and, where applicable, your Affiliates´) employees and officers. Services may however not be used by consultants, agents, subcontractors, or any third parties without our prior written approval.
1.3
You may access and use the Service only for the intended and permitted purpose of use and within the agreed and applicable scope of use in accordance with our agreement. The rights granted to you are non-exclusive, non-transferable, and non-sublicensable. Except as otherwise expressly permitted in writing, you agree not to: (a) reproduce, modify, adapt or create derivative works of the Service; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Service to a third party; (c) use the Service for the benefit of any third party or incorporate the Service or part thereof into products or services for the benefit of a third party; (d) interfere with or hamper mechanisms in the Service intended to limit use or related to security; (e) reverse engineer, disassemble, decompile or otherwise seek to obtain or derive the source code, algorithms, file formats, etc. to the Service or any part thereof (except to the extent expressly permitted by applicable mandatory law); (f) remove, alter or obscure any proprietary or other notices contained in the Service; (g) use the Service other than in compliance with our agreement or for any purpose other than the intended or (h) permit a third party to do any of the foregoing.
1.4
Support for the Service is provided through the Service Level Agreement set out in the Merchant Agreement (“Service Level Agreement”).
2.1
“Customer Content” means any information, data, video, audio, or other content and materials that you (including Affiliates and Users) submit, upload, transmit, store or otherwise make available in or to the Service. You will retain all rights, title and interest in and to Customer Content. You hereby grant us a worldwide, non-exclusive, limited license to access, use, process, copy, distribute, perform, export and display Customer Content (including the right to make modifications and derivative works) solely to the extent necessary to provide the Service to you. We are also granted the right to also access your Account and use of the Service in order to provide the Service. For the avoidance of doubt, analytics data, i.e. data relating to the use of the Service, and server log files do not constitute Customer Content and may be freely utilized by us without any restrictions (provided that your identity is not revealed and subject always to our compliance with applicable privacy laws).
2.2
Your use of the Service must comply at all times with the Terms and the agreement, including our Acceptable Use Policy (“AUP”) and with all applicable laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to Customer Content and to grant us the rights as set out in the Terms; (ii) Customer Content and its use will not violate (a) the AUP; (b) any third-party intellectual property or other rights (including but not limited to rights to pertaining to personal data processing and that you have legal grounds for such processing); (c) any third-party policies or terms. Other than expressly undertaken by us, we assume no responsibility or liability for Customer Content and you are solely responsible for Customer Content and the consequences of submitting and using it in or in relation to the Service. You will indemnify and hold harmless us from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or relating to (i) Customer Content; or (ii) your breach of this clause and/or the Terms. We have no obligation to monitor any Customer Content uploaded to the Service. Nevertheless, if we deem such measures necessary, based on our preliminary assessment of your compliance with the Terms and/or the AUP, or in response to received takedown requests (e.g. on reported infringements), we may (a) remove Customer Content from the Service and/or (b) suspend your access to the Service. We will use reasonable efforts to provide you with advance notice of any such removal and/or suspension when practicable to do so, but may, without any liability on our part, remove Customer Content or suspend the Service, partly or wholly, with immediate effect, if we reasonably deem this necessary for the continued operation of the Service and/or for the security or protection of us, you, other users or third parties.
3.1
Unless otherwise agreed, the Service is made available and purchased on a subscription basis and fees for the Service are payable monthly in arrears. All paid amounts are non-refundable, non-cancelable and non-creditable unless otherwise indicated. Fees and charges for the Service are indicated in SEK (Swedish kronor) and exclude value added tax.
3.2
We reserve the right to charge a penalty interest on late payments, at the rate of two (2) per cent on the outstanding balance per month. In case of late payment or non-payment, we are entitled to terminate the agreement in accordance with clause 12 below, or, at our sole discretion, suspend the Service or any part thereof, and/or to limit your access to same until full payment of all outstanding amounts has been made.
3.3
We reserve the right, upon notice to you, to adjust the fees at any time during the Term, in the event of increased costs and/or changed circumstances (e.g. due to changes in laws, regulations and/or governmental acts or decrees, changes in taxation, increased costs for third party products and/or services, changed supplier terms, etc.), as reasonably determined by us, relating to the Service. If you do not accept the adjustment, your exclusive remedy is to terminate the agreement in accordance with clause 11.1, below.
4.1
You may from time to time use or procure certain third-party products or services (including consultancy services for the setup of the Service in your individual environment) in connection with the Service. Your use of any third-party products or services is subject to separate agreements between you and such third-party providers. For the avoidance of doubt, we are not responsible for any such third-party providers or their products or services or for the security of any third-party provider or its products or services. Furthermore, third-party products and/or services may also be included in or connected to the Service from time to time. We disclaim all liability and responsibility for any third-party products or services or for third-party providers or vendors. If we have expressly undertaken such liability towards you in a particular case, then we will only be liable to the extent that the third-party provider in question is liable to us under applicable terms and conditions (and subject always to applicable liability limitations and restrictions as set out in the third-party provider´s/vendor´s terms and conditions). Our liability will in no event extend beyond the liability set out in these Terms, including but not limited to the limitations set out in clause 10, below).
5.1
We have implemented and will maintain technical, organizational, and administrative security measures and processes designed to protect the Service and Customer Content (as defined below) from unauthorized access, destruction or disclosure. We aim to provide the Service fully available, secure and safe, but cannot, given its nature, guarantee, other than to the extent set out in the Service Level Agreement (and subject to the limitations contained in the Service Level Agreement), that it will always be available, completely secure and without errors or interruptions, delays or imperfections. Furthermore, we cannot guarantee that Customer Content will be available all the time or that no harm will come to it. You will be solely responsible for adequate and appropriate backup at all times of any Customer Content.
5.2
Collection and processing of personal data about you and Users in connection with our provision of the Service will be made in accordance with our Privacy Policy. With respect to our processing of personal data (as defined under applicable law, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data; “GDPR”), in the Customer Content, our Brink Data Processing Agreement will apply.
6.1
No other right than a limited right to access and use the Service in accordance with the Merchant Agreement and the Terms is granted to you. Brink and its licensors own and will retain all right, title and interest, including all intellectual property rights (be it registered or non-registered), in and to the Service and its underlying technology, documentation and all and any improvements or development to it. All materials, including software, help topics, reports, data sheets, videos, images, and frequently asked questions (collectively; “Materials”) made available as part of the Service are the copyrighted and/or proprietary work of Brink and/or its licensors. Brink reserves all rights to the Materials and you are not granted any right to the Materials other than a limited right to access and use the Materials during the Term solely to utilize the Service in accordance with our agreement. In the event that you submit comments, ideas or other feedback to us relating to the Service, we are entitled to use, develop and freely exploit, without limitation in time (and with a right to freely transfer and sublicense), any such feedback, in any manner, without any royalty and/or payment obligation or restriction of any kind (and, for the avoidance of doubt, any such feedback will not constitute your Confidential Information).
7.1
The parties agree that one party (“Receiving Party”) may have access to information that is confidential to the other party (and/or any of its affiliates) (“Disclosing Party”) (such information is hereinafter referred to as “ConfidentialInformation”). “Confidential Information” means any and all confidential or proprietary information relating to the business or organization of the Disclosing Party, whether or not stored on any medium, including, but not limited to, computer programs, code, algorithms, names and expertise of employees and consultants, information relating to suppliers, purchasers and contracts, know-how, trade secrets, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information which is either identified as confidential or considered by a reasonable person, given the nature of information and circumstances, confidential. Confidential Information includes, but is not limited to, the Service and its performance, its underlying technology and any documentation and material relating thereto. Customer acknowledges, for the avoidance of doubt, that Confidential Information includes all information with respect to the prices agreed under the agreement, as well as Brink´s price lists, pricing structures, pricing discussions and related information disclosed to Customer and/or shared between the parties in connection herewith. Receiving Party agrees to hold all Confidential Information confidential and to use at least the same degree of care to prevent unauthorized disclosure of such Confidential Information as it uses to protect its own information of the same nature. Receiving Party shall use such Confidential Information solely for the purposes of performing the agreement. Receiving Party agrees not to disclose Confidential Information to anyone except its employees, representatives and authorized contractors who are under a duty of confidentiality on a need-to-know basis. Receiving Party shall be directly liable for the acts or omissions of such personnel and contractors. The parties’ obligations relating to Confidential Information shall survive the termination hereof without limitation in time. The foregoing obligations shall not apply to Confidential Information which Receiving Party can show: (a) is, or becomes, available within the public domain without breach of confidentiality; (b) is already in the possession of Receiving Party without obligations of confidentiality; (c) is independently developed by Receiving Party without any breach of the agreement; (d) is received by Receiving Party from a third party without restriction on disclosure or use; or (e) must be disclosed under mandatory law or due to court or governmental order. In the event that Receiving Party is requested pursuant to legal process to disclose any Confidential Information, Receiving Party shall, to the extent legally permitted, provide Disclosing Party with notice to such effect, and at the request of Disclosing Party co-operate with Disclosing Party in seeking relief against the disclosure of such Confidential Information.
8.1
EXCEPT AS EXPRESSLY AGREED, THE SERVICE IS PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR, SPECIAL OR GENERAL PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. EXCEPT AS EXPRESSLY AGREED, WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT WE WILL BE ABLE TO PRESERVE, PROTECT OR MAINTAIN CUSTOMER CONTENT. YOU UNDERSTAND AND ACKNOWLEDGE THAT USE OF THE SERVICE NECESSARILY INVOLVES TRANSMISSION OF CUSTOMER CONTENT OVER NETWORKS AND TO SERVICES THAT WE DO NOT OWN, OPERATE OR CONTROL (INCLUDING THIRD-PARTY VENDORS) AND WE ARE NOT RESPONSIBLE FOR ANY CUSTOMER CONTENT LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS OR SERVICES. FURTHER, WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES AND MEASURES WILL BE ERROR-FREE OR THAT TRANSMISSIONS OF CUSTOMER CONTENT WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL BE UNABLE TO DEFEAT OUR SECURITY MEASURES OR SECURITY MEASURES OF OUR THIRD-PARTY SERVICE PROVIDERS. FURTHER, EXCEPT AS EXPRESSLY AGREED, WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OR SERVICES OUTSIDE OUR REASONABLE CONTROL.
9.1
We will defend you against any claim brought against you by a third party alleging that the Service, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark and we will indemnify you and hold you harmless against any damages and costs finally awarded by a competent court or judicial body or agreed in a settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the claim as soon as you become aware of it; (b) reasonable assistance in the defense of the claim, including providing us a copy of the claim together with all relevant information in your possession or control; and (c) the exclusive right to control the defense and settlement of the claim.
9.2
We may, in our discretion and where we deem it appropriate: (i) procure a right for you to continue use of the Service in accordance with these Terms; (ii) modify the allegedly infringing part of the Service so that it becomes non-infringing but without affecting its essential functionality; or (iii) terminate your right to use the Service and refund any amounts paid by you in advance for the remainder of the Term.
9.3
Our indemnity obligations will not apply: (a) if the total aggregate fees we have received from you in the twelve (12) month period immediately preceding the claim is less than SEK five million (5,000,000); (b) to the extent that the Service has been modified by a party other than us and the alleged infringement would not have occurred without such modification; (c) if the Service has been used in combination with any non-Brink product or service; unless such combination has not caused the alleged infringement; (d) in case of unauthorized use of the Service; (e) to any claim arising as a result of (y) Customer Content or any circumstance covered by your express indemnification obligations or (z) any third-party deliverables or components contained in or used with the Service or (f) if you make any admissions with respect to or settle a claim without prior written consent from us. The indemnity provided in this indemnity clause 9 sets out our sole liability and the remedies set out herein are exclusive in case of intellectual property infringement claims related to the Service and/or the agreement.
10.1
NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO OUR AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH LOSSES IN ADVANCE. EACH PARTY’S ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED AN AGGREGATE AMOUNT CORRESPONDING TO FIFTY (50) PERCENT OF THE AMOUNT ACTUALLY PAID BY YOU TO US UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE OCCURRENCE OF THE CIRCUMSTANCE FORMING BASIS FOR THE CLAIM. THE AFORESAID LIABILITY LIMITATION AND LIABILITY CAP WILL NOT APPLY TO (OR IN CASE OF): (A) ANY FEES, CHARGES OR AMOUNTS OWED BY YOU TO US UNDER THE AGREEMENT; (B) YOUR EXPRESS INDEMNIFICATION OBLIGATIONS SET OUT IN THE TERMS; (C) YOUR EXPRESS WARRANTIES; (D) UNAUTHORISED USE OR TRANSFER OF INTELLECTUAL PROPERTY RIGHTS OR OTHER VIOLATION OF RIGHTS OF USE; AND (E) ACTS OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE BY A PARTY.
11.1
We may modify the Terms and the Merchant Agreement (including terms and documents referenced herein) upon notice to you. You must accept the modifications in order to continue to use the Service. If you do not accept the modifications, your exclusive remedy is to terminate the agreement. Except as otherwise indicated below, any modifications will become automatically effective (unless you elect to terminate our agreement after being notified) upon expiry of such notice period as we deem appropriate. In some cases, we may deem it appropriate that such modifications shall become effective immediately (such decisions may be taken e.g. to address any changes in law, compliance matters, changes due to technical and/or commercial reasons, the introduction of new features or functions, etc.). If we decide to implement such a modification and you object to same, then you may terminate the agreement after having given us notice to this effect (whereupon we will refund pre-paid fees, if any, for the Service with respect to the terminated part of the current Term. In order to be entitled to terminate (and, where applicable, to a refund), you must provide us with termination notice (including a reference to this clause) without undue delay and in no event later than seven (7) days after the date when we informed you of the envisaged modification, failing which you will be deemed to have accepted the modification. You acknowledge that the Service is on-line, subscription-based and affected by technology development and business needs, and that we may therefore, as deemed necessary from time to time, decide to change the Service at any time and we reserve such right (including the right to discontinue parts or features of the Service for any reason at any time and without liability to you). In case such changes are fundamental and deprives you of the essence of the Service, you are entitled, as your sole and exclusive remedy, to terminate the agreement (and, where applicable, to a refund of pre-paid fees), in accordance with the principles set out above.
12.1
Unless otherwise agreed, the agreement is effective as of the effective date and will be in force for an agreed initial subscription period for the Service, as set out in the Merchant Agreement (“Initial Term”). Unless terminated by Brink no later than three (3) months prior to the expiry of the Initial Term, the agreement will be renewed with one or more new subscription periods (“Renewal Term/s”) until terminated by Brink no later than three (3) months prior to the expiry of any current Renewal Term. Unless otherwise set out in the Merchant Agreement, the Initial Term (and any Renewal Term) shall be twelve (12) months). The Initial Term and any Renewal Term are herein collectively referred to as the “Term”.
12.2
Notwithstanding the foregoing, the Customer is always entitled, at any time during the Term, to terminate the agreement by giving Brink not less than thirty (30) days written notice.
12.3
Either party may prematurely terminate the agreement if the other party (a) fails to cure any material breach within thirty (30) days after written notice; (b) ceases its operations; or (c) is declared bankrupt, in receivership or comparable proceedings or if any such proceedings are instituted against or with respect to that party. Notwithstanding the foregoing, delayed payment by you will always entitle us to terminate the agreement immediately (in addition to our right to suspend the Service).
12.4
Upon expiration or termination of the agreement for whatever reason, you must cease using the Service and delete, or at our request, return, all Confidential Information and other materials and property belonging to us and, at our request, certify deletion, in the manner reasonably prescribed by us. Please note that after termination or expiration, you may no longer have access to Customer Content. You should therefore ensure that you have exported (where relevant, as applicable) any Customer Content prior to termination or expiration. Termination will for the sake of clarity not relieve you of your obligation to pay any fees payable to us for contract periods prior to the date of termination or otherwise due to us. In case of breach by you, termination does not, for the sake of clarity, preclude our use of other remedies available under the Terms or applicable law.
13.1
Notices. Notices shall be given in writing (e-mail, post or by hand/courier) to the addresses set out in the Merchant Agreement or otherwise notified in writing.
13.2
Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under the agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disease (be it of a pandemic nature or not), government act, failure or diminishment of power or telecommunications or data networks or services.
13.3
Assignment and subcontractors. You may not assign or transfer the agreement or the Terms without our prior written consent. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under the Terms (in whole or in part) without your consent, e.g. to an affiliate or in case of a merger or sale of business. We are entitled to appoint subcontractors, for the performance in whole or part of our obligations under the agreement, without permission from you. We will be liable for the performance of any appointed subcontractors as if their performance had been our own.
13.4
Entire Agreement. The Merchant Agreement and these Terms (including any documents referenced therein) constitute the entire agreement between us relating to the Service and supersede all prior oral or written communications, statements or undertakings. No purchase order, business form or other terms provided or referred to by you will be valid and/or deemed to replace, supersede or amend the agreement (including any documents referenced to herein) or its interpretation.
13.5
Publicity rights. We may identify you as a Brink customer in our promotional materials and you consent to the publication of your name and logos/trademarks by us as a customer on marketing and trade show materials and on our website and social media. We will seek your approval of any press release, which approval will be granted in good faith and not be unreasonably withheld, delayed or conditioned.
13.6
Modifications. Except as otherwise set forth in the Terms, any amendments or modifications to the Terms or Merchant Agreement/s must be executed in writing by authorized representatives of each party.
14.1
Our agreement, including these Terms, is governed by the laws of Sweden. 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 in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Arbitration Rules by the SCC 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 Rules for Expedited Arbitrations shall apply. In the former case, the Arbitral Tribunal shall be composed of three arbitrators. The seat of arbitration shall be Stockholm, Sweden and the language to be used in the proceedings shall be English. The arbitral proceedings and all non-public information disclosed and all documents submitted or issued by or on behalf of any of the parties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceedings shall be kept strictly confidential and may not be used for any other purpose than for the proceedings nor be disclosed to any third party without the prior written consent of the other party. Such non-disclosure obligation shall however not apply if and to the extent (a) a party is required to disclose information by law or by stock exchange rules or pursuant to any order of court or other competent authority or tribunal; or (b) such information is disclosed to a party's employees or professional advisers, provided such persons are bound by a duty of confidence or (c) disclosure is necessary in order for a party to avail itself of its rights. If a party becomes required to disclose confidential information pursuant to subclause (a) above, then the disclosing party shall, in so far as possible, consult with the other party prior to the disclosure.
14.2
Notwithstanding the foregoing; nothing will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
VERSION 11 FEBRUARY 2022
