FLARIE GENERAL TERMS OF SERVICE FOR CUSTOMERS

1. GENERAL

1.1) These General Terms of Service for Customers (the “Terms”) applies to the use of and access to the Platform (as defined below herein) and any other services, including without limitation during free trials, (the ”Service(s)”) and the provision thereof by Flarie AB, reg. no 556856-2747, or any company in the Flarie group (“Flarie”, “we”, “us” or “our”), to you as a business customer (the “Customer” or “you”). Flarie and Customer are collectively herein referred to as the “Parties”.

1.2) In these Terms, any reference to the “Platform” refers to, our game and gamification manager tool available at https://studio.flarie.com (“Flarie Studio”), including, without limitation, our website and any associated domains of the Platform and/or Flarie.

1.3) Any reference to “Customer” or “you” shall include any Representative and/or Ordering Party (each as separately defined in Section 2 below).

1.4) You accept these Terms either in connection with your access and/or use of any of our Services or by the acceptance of an issued order confirmation regarding a specific Service to be provided to you (“Order Confirmation”). These Terms are considered an integral part of the Order Confirmation, if applicable, which itself may include additional terms relating to the provision and use of the Service (“Additional Terms”). In the event of any conflict between the terms of a Confirmed Order, including any Additional Terms therein, and these Terms, the terms of the Order Confirmation shall prevail.

1.5) For the avoidance of doubt, any reference herein to the “Terms” shall include each Order Confirmation, including any agreed Additional Terms and attached documents thereto, the DPA (as defined below), as well as any other applicable documents that may be agreed upon between the Parties from time to time.

1.6) By accepting the Terms, Customer hereby appoints Flarie to perform the relevant Service(s) hereunder and acknowledges and agrees to adhere to these Terms and undertakes to only use the Service(s) for its intended purpose and in accordance with these Terms.

1.7) The Parties acknowledge that the Services are provided on a non-exclusive basis and thus each Party have the right to enter into similar agreements and arrangements with other business partners provided however that such agreements and arrangements are not violating these Terms.

 

2. REPRESENTATIVE; ORDERING PARTY

2.1) When accepting these Terms, the Customer may be represented by a third party lawfully acting on behalf of the Customer (if applicable, such party is mentioned in the Order Confirmation as “Ordering Party”) or by an employee or other individual working for the Customer “Representative”, whom by accepting these Terms on behalf of the Customer, binds the Customer to the Terms.

2.2) If the Representative and/or Ordering Party (as applicable) is a physical person, Customer is responsible for informing and, when applicable and necessary, collecting consent under these Terms.

2.3) The Ordering Party and/or Representative (as applicable) itself undertakes to adhere to these Terms and warrants that it has the relevant authority to represent the Customer and thus enter into these Terms on behalf of the Customer.

2.4) Upon request from Flarie, the Ordering Party and/or Representative (as applicable) shall present relevant documentation stating that it has the authority to represent and bind the Customer hereunder.

2.5) If the Ordering Party and/or Representative (as applicable) breaches the provisions of Section 2.3 or 2.4 above, such party shall be obliged to compensate Flarie for any damages that Flarie may suffer as a result of such party’s breach hereof.

 

3. FLARIE SERVICES

3.1 General

3.1.1) Flarie’s platform software associated with the Platform (“Platform Software”), enables you to create and develop customized and branded content including, but not limited to, games (“Games”), quizzes, videos, links and offers (together “Content”) to be used and distributed by the Customer, subject to the Terms.

3.1.2) The Services offered by Flarie under these Terms consist of (i) a subscription to Flarie Studio (“Flarie Studio Subscription”) and/or (ii) a one-time Service (“One-Time Services”) provided by Flarie either related to the Flarie Studio Subscription or as a separate campaign as agreed between the Parties. Under the Flarie Studio Subscription, and certain One-Time Services, Customer will get access to the functionalities and tools in Flarie Studio in order for the Customer itself to create its own branded Content (i.e., Customer Content as described in Section 3.1.3) and, at the Customer’s own risk, to distribute such Customer Content to any end users (“End-Users”) either on the Platform and/or on third-party platforms that do not belong to Flarie, as agreed between the Parties. By way of clarification, any references herein to “End Users” shall include any third-party getting access to the Customer Content as a result of the Customers distribution thereof.

3.1.3) Content including the Customer’s intellectual property rights shall, together with such branded Content described in Section 3.1.2, be referred to herein as “Customer Content”. However, the Parties acknowledge and agree that such referrals to “Customer Content” shall exclude any and all rights, including any intellectual property rights (whether registered or not), to the Service and/or Platform as well as, but not limited to, code tools, software, concepts, ideas, websites etc. linked to or in any way associated with the Service and/or the Platform Software.

3.1.4) Unless otherwise stated in an Order Confirmation, the Services hereunder shall be provided to the Customer in the territories and markets in which Flarie operates from time to time. However, this shall in no event limit the Customer’s responsibility, pursuant to these Terms, to for example ensure that the used and distributed Customer Content (including, however not limited to, communication with End Users, certain settings in Flarie Studio, as well as Challenges and related Prizes by Customer) complies with laws and legislation in the relevant jurisdiction for such use and distribution.

3.2 Flarie Studio account

3.2.1) In order to gain access to the available features in Flarie Studio, Customer must register for a personal user account in Flarie Studio on the Platform (“User Account”).

3.2.2) Customer represents and warrants that the information provided to Flarie upon use of the Service and/or registration of the User Account is accurate and truthful.

3.2.3) Customer undertakes not to disclose its username and password to its User Account to any unauthorized person and to ensure that any documents containing username or password information to the User Account are stored in such a way that unauthorized persons cannot access them. Customer shall promptly notify Flarie if it suspects that unauthorized persons have accessed its User Account or if the discretion of the credentials otherwise has been compromised.

3.2.4) Flarie will not be liable for any loss that you may incur as a result of any unauthorized persons using your User Account, either with or without Customer’s knowledge. However, Customer will be held liable for any losses incurred by us or another party due to someone else using your account or password as a result of your negligence or breach of these Terms.

3.2.5) Customer is aware that the Customer uses Flarie Studio, including creating and distributing Customer Content, at its own risk, and that Flarie is not required to provide any support to the Customer in relation to its use of Flarie Studio or the User Account, unless otherwise agreed in any Additional Terms.

 

3.3 Customer Content

3.3.1) By using Flarie Studio, the Customer may create and distribute Customer Content as made available with the options and settings therein. The Customer commits to at all times clearly indicating that the Customer is the creator of the Customer Content (however, excluding the Content or other intellectual property rights of Flarie pursuant to these Terms) as well as to use Flarie Studio and to create and distribute the Customer Content therein in compliance with these Terms.

3.3.2) Further, for any Customer Content created by Flarie and included in any campaigns ordered by the Customer as a One-Time Service hereunder, the Customer shall be specified as the consignor of such any Customer Content (however excluding any Content or other intellectual property rights of Flarie pursuant to these Terms).

3.3.3) By submitting, creating and distributing any Customer Content using Flarie Studio, or in any other way by submitting Customer Content to Flarie, Customer hereby warrants that it has the right and all necessary approvals to use and publish the Customer Content and that Flarie can use Customer Content created by Customer in order to provide the Service to the Customer in accordance with the Terms, without any payment or obligation to Customer or any third party. Further, the Customer is responsible for ensuring that the publishing of Customer Content through Flarie Studio, including any Content and selected settings thereto on the Platform, as per these Terms, does not result in any infringement of third-party rights or violations of applicable laws and regulations.

3.3.4) The Customer acknowledges and agrees that Customer is solely responsible for Customer Content used, submitted and/or published on the Platform, as well as on any third-party platform or similar not owned by Flarie, and for the consequences of using, posting or publishing such Customer Content in the applicable jurisdiction for such distribution. Should the Customer distribute Customer Content on any third-party platform or similar (if applicable), the Customer undertakes to ensure that the Customer Content complies with the rules and applicable laws and legislation of the relevant platform.

3.3.5) Consequently, Customer is solely responsible towards End Users, and any other third-party, and agrees to indemnify and hold Flarie and our licensors harmless in the event of any liability claim or inquiry by an End User, a third party or authority in relation to the Customer Content.

3.3.6) For the avoidance of doubt, the Customer is solely responsible for ensuring that Customer Content does not violate these Terms, and terms of this Section 3.3 particularly. Flarie has no obligation to take any action against the Customer in relation to any Customer Content created or distributed in Flarie Studio that violates these Terms, even if Flarie reserves a right to remove such Customer Content pursuant to Section 5.2.2 below.

 

3.4 Features and tools in Flarie Studio

3.4.1) Flarie Studio contains several features and tools that the Customer may use towards End Users in accordance with these Terms. Such features include, but is not limited, to an email communication feature, that will allow the Customer to via email communicate with End Users either regarding information about the Customer Content or to send marketing communication to specific End Users who have opted-in to such marketing communication by Customer. Such features may include a possibility to handle materials such as, but not limited to, text, message, comments, images, links and other information included in such email communication with End Users. The Customer’s use of the email feature as well as any other features and/or tools in Flarie Studio must comply with any guidelines specified in the Terms or as separately provided by Flarie from time to time.

3.4.2) Furthermore, the use of the relevant features and tools in Flarie Studio must at all times comply with applicable laws and regulations (and particularly relevant marketing laws as well as data protection laws and regulations). The Customer acknowledges and agrees to ensure compliance with applicable laws and regulations when using such features and tools available in the Service and, further, agrees to keep Flarie harmless from any liability claims arising out of the Customer use hereof.

 

3.5 Prizes by the Customer

3.5.1) The Customer may choose to offer prizes connected to its Customer Content in Flarie Studio, by creating challenges and similar (“Challenges”) through which End Users may compete for prizes sponsored by the Customer (“Prizes”).

3.5.2) Customer is solely responsible for providing and delivering any Prizes for Challenges of which Customer is the stated sponsor, meaning that Flarie has no obligation or responsibility whatsoever to ensure that Challenges are held, or Prizes thereto are distributed to any End User.

3.5.3) The Customer undertakes not to offer Prizes or conduct Challenges of any kind that may be perceived by the general public as offensive, invidious, inappropriate, etc. and may under no circumstances be of an illegal nature. For the avoidance of doubt, the Customer shall be solely responsible to ensure that the Challenges as well as the Prizes comply with applicable law and regulations.

3.5.4) Further, for Games or other relevant Content including Customer Content, produced by Flarie on behalf of the Customer, to which a Challenge and Prize or similar are linked, the Customer is also solely responsible for such Challenge as well as the provision and delivery (as applicable) of such Prize to End Users in accordance with the terms of this Section 3.5.

 

3.6 Hosting (included Game loads)

The Customer acknowledge that the right to use Flarie Studio hereunder is limited to a specified hosting volume (number of Game loads) as announced by Flarie in connection with your acceptance of the Terms or as agreed by the Parties in an Order Confirmation. If the Customer exceed the applicable hosting volume hereunder, Flarie shall be entitled to charge the Customer for such extra volume use in accordance with the applicable rates per Game load as provided by Flarie upon the acceptance of these Terms.

 

4. CUSTOMER’S AGREEMENTS WITH END USERS

4.1) Customer acknowledges that, by distributing Customer Content on the Platform or any third-party platform, Customer thereby grants End Users a right to access and use such Customer Content. The Customer shall have the sole responsibility for the use and provision of such Customer Content to End Users. As a result, Customer shall ensure that relevant agreements (including but not limited to any privacy information, cookie information and other relevant information as required pursuant to applicable law) regarding the use, access and delivery by Customer of the relevant Customer Content are entered into with and/or provided to such End Users.

4.2) As the Customer Content includes Content, Platform Software and/or other intellectual property rights of Flarie or our licensors pursuant to these Terms, the Customer acknowledges and agrees that End Users and any other third party’s access to such Content shall be subject to Flarie’s General Software Terms & Conditions (“Software Terms”) which can be found here.

4.3) Customer acknowledges and agrees that the Software Terms will be made available and accepted by End Users prior to their access to the Customer Content. However, the Customer may (and is recommended to) apply its own terms and conditions governing End Users’ access to and use of the Customer Content (e.g. the Customer’s terms for using the Customer Content, or terms applicable to the Game or any related Challenges). If such separate terms and conditions are entered between the Customer and End Users, the Customer shall ensure that such agreement does not contradict any terms of the Software Terms. Should such agreement be inconsistent with the Software Terms, the Software Terms will control.

4.4) The Customer acknowledges and agrees that if an End User does not accept the Software Terms, such End User is not permitted to use, the Customer Content including such Content or intellectual property by Flarie.

4.5) The Customer agrees to indemnify and to keep Flarie harmless from and against any claims or damages as a result of the Customer’s breach of this Section 4.

 

5. USE OF THE SERVICE AND CUSTOMER CONTENT

5.1 Customer’s right to use the Service

5.1.1) When accepting these Terms pursuant to Section 1.4, Flarie grants the Customer a limited, non-exclusive, revocable, non-transferrable right to access and use Flarie Studio, Content and the Platform Software subject to the Terms and solely as necessary in order for Customer to use the Service(s) for its intended use hereunder. Such use includes (i) uploading, testing, displaying and executing Customer Content and (ii) distributing Customer Content on or through the Platform as well as on third-party platforms or similar that do not belong to Flarie to End Users, as specifically agreed between the Parties.

5.1.2) Customer’s right to use the Services (including, but not limited to, Flarie Studio, the User Account, the Platform Software, any Content and any thereto related tools, materials, rights etc.) hereunder only permits the Customer to use it in a way that do not conflict with these Terms and any instructions provided by Flarie from time to time. The Customer is solely responsible for its Representatives’ and/or Ordering Party’s (as applicable) access and/or use of the Services in accordance with these Terms.

5.2 Flarie’s right to use and/or remove Customer Content

5.2.1) By submitting, creating and distributing Customer Content pursuant to these Terms, you hereby grant us and our subcontractors (as applicable) a limited, non-exclusive, sub-licensable, royalty-free right to use the Customer Content including other related submitted materials, or parts of it, solely for the purpose of providing our Service in accordance with these Terms or as specifically agreed in writing between the Parties.

5.2.2) Further, Flarie reserves the right to, in its sole discretion and without liability for any damages, remove all or segments of your submitted Customer Content and any other related material (as applicable) that Flarie, acting reasonably, deems violates these Terms, applicable laws or regulations. Unless prohibited due to applicable law, authority decision or similar, Flarie shall inform the Customer in writing in the event Flarie exercises its rights under this Section 5.2.2. Such removal of Customer Content does not entitle the Customer to a refund of paid fees, if any, nor shall it have any effect on the Customer’s liability under these Terms to keep Flarie harmless from and against any damages as a result of such violation by Customer. For the avoidance of doubt, the Customer is solely responsible for the Customer Content and Flarie has no obligation to take any action against the Customer in relation to any Customer Content created or distributed in Flarie Studio that violates these Terms.

6. UNDERTAKINGS; RESTRICTIONS ETC.

6.1) Customer hereby undertakes to at all times ensure compliance with these Terms upon the use of the Services, including but not limited to Flarie Studio and any features and tools made available by Flarie. Furthermore, the Customer undertakes to at all times ensure that Customer Content, including any selected settings thereto on the Platform, and any other material submitted, used and published in Flarie Studio (or in any other way provided to Flarie under these Terms):

(i) are accurate, valid, complete and do not violate any applicable laws or regulations;

(ii) do not contain confidential or proprietary information, intellectual property, personal data belonging to a third party, (unless such third party has given its express consent thereto), or trade secrets;

(iii) do not contain malicious code, such as viruses, time-bombs, cancel-bots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information, or link to any website or app which promotes or teaches these actions;

(iiii) are ethically correct. It is therefore not permitted to create Customer Content or other material that may be offensive or defamatory against ethnic groups and/or individuals including, but not limited to, pornographic messages, prostitution, drugs, etc.

6.2) Further, Customer hereby agrees not to, for example, but not limited to:

(i) copy the Service (or any part of it);

(ii) use the Service in any way that directly or indirectly competes with Flarie;

(iii) do anything which may disrupt, damage, or impair the Service (or any part thereof), or prevent others from using any part of the Service;

(iiii) remove any copyright, trademark or other proprietary notices from any portion of the Service;

(v) decompile, reverse engineer or disassemble the Service;

(vi) link to, mirror or frame any portion of the Service, except as necessary in order for the Customer to use the Service as expressly permitted under these Terms;

(vii) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service;

(viii) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks; or

(ix) use the Service in conflict with these Terms, any applicable law and/or legislation.

6.3) Flarie reserves the right to, as further specified in Section 7.4, suspend or terminate the Customer’s access to the Services provided hereunder in the event Flarie, acting reasonably, deems the Customer (including any of its Representatives and/or the Ordering Party) to be in breach of these Terms. Further, in case of breach of this Section 6, or any other material term in these Terms, Customer shall in accordance with Section 14 below be obliged to pay Flarie compensation for all direct and indirect losses caused by the Customer.

7. TERM AND TERMINATION

7.1 Term of the agreement etc.

7.1.1) These Terms shall enter into force when accepted by the Customer in accordance with Section 1.4 and shall remain in force until further notice or as specifically agreed in the Order Confirmation or these Terms.

7.1.2) The subscription period of the Flarie Studio Subscription as well as the provision of a One-Time Service can be cancelled, as set out in Sections 7.2 and 7.3 below, without terminating these Terms. However, the Flarie Studio Subscription period as well as a One-Time Service is terminated if these Terms are terminated.

7.2 Flarie Studio Subscription period and cancellation

7.2.1) Unless otherwise agreed in an Order Confirmation, the Flarie Studio Subscription is provided in one-year subscriptions where a subscription period is pre-paid in accordance with Section 8.1.2 below. Either Party may without reason cancel the Flarie Studio Subscription by a written notice to the other Party at any time prior to the end date of the current Flarie Studio Subscription period. If cancelled in accordance with this Section 7.2.1, the Flarie Studio Subscription will end upon the expiry of the then current Flarie Studio Subscription period in force. If the Flarie Studio Subscription is not cancelled in accordance with this Section 7.2.1, the Flarie Studio Subscription shall at each expiration date of the current subscription period in force be prolonged for an additional corresponding period. Every such prolonged period is considered an extension of the initial Flarie Studio Subscription, and each new period shall be paid in advance in accordance with the terms of Section 8.1 below, unless otherwise agreed between the Parties in any Additional Terms.

7.2.2) In addition to the cancellation right in Section 7.2.1, the Customer may at any time, during an ongoing Flarie Studio Subscription period, terminate the Flarie Studio Subscription by giving at least two (2) months’ prior written notice to Flarie. Termination will become effective two (2) months after such termination notice. If the Customer exercises the termination right in this Section 7.2.2, the Customer shall be liable to pay the remainder of the total Fee for the then current Flarie Studio Subscription period in force. If the Customer has paid the total Flarie Studio Subscription Fee for the period in advance, Flarie shall have the right to retain the fee for the remaining period.

7.2.3) If the Flarie Studio Subscription is cancelled pursuant to Section 7.2.1 or 7.2.2, the Customer’s right to use the Service ceases. However, Flarie will save all relevant data and settings on the Customer’s account for thirty (30) days after the effective date of termination or cancellation, allowing the Customer to reactivate its Flarie Studio Subscription and/or, during such thirty (30) days’ period, to obtain its exportable Customer Content by exporting it from Flarie Studio itself in a commonly used and machine-readable format. Flarie may charge pre-agreed switching fees limited to reasonable, cost-based expenses for the export or transfer of Customer Content conducted by Flarie, in accordance with applicable mandatory law. After this period Flarie may delete such Customer Content. If the Customer initiates a new Flarie Studio Subscription more than thirty (30) days after such cancellation, the Customer may have to start over with a new and empty account.

7.3 One-Time Services cancellation

7.3.1) The Customer may cancel a One-Time Service by submitting a written notice to Flarie at any time before the agreed provision date of the One Time Service. Cancellation does not entitle the Customer to any refund of any fees paid for a One-Time Service pursuant to these Terms, unless otherwise agreed between the Parties in any Additional Terms.

7.3.2) Flarie may cancel a One-Time Service by submitting a written notice to the Customer at any time before scheduled launch date of the One-Time Service and Flarie shall in such event refund any fees paid for such Service in full to the Customer.

7.4 Termination or limit of Services by Flarie

7.4.1) Flarie is entitled, at its sole discretion and without prior warning or liability for any damages, to terminate, suspend or limit Customer’s access to Flarie Studio, the User Account, and any other Services and related material (as applicable) provided hereunder in the event that:

(i) there is a regulatory change that limits Flarie’s ability to offer the Service in general and/or in a specific market or territory;

(ii) any event beyond Flarie’s control prevents Flarie from providing access to the Service including, but not limited to, technical problems, capacity problems and communication problems; or

(iii) Flarie, acting reasonably, believes or deems that the Customer, including any of its Representatives and/or the Ordering Party, abuses the Service, uses it in a way that Flarie considers as a non-normal use, or otherwise acts in violation of these Terms and/or applicable laws and regulations.

7.4.2) In the event of termination of these Terms, Sections 9 (Intellectual Property; Rights Ownership) 10 (Ownership of Data), 11 (Personal Data; Information Security Etc.), 12 (Confidentiality and Publicity), 14 (Indemnity; Disclaimer), 15 (Limitation of Liability) and 20 (Governing Law and Dispute Resolution) shall continue to be valid in accordance with what is stated therein after termination of these Terms.

 

8. FEES AND PAYMENT ETC.

8.1 Fees and payment

8.1.1) Fees attributable to the Service shall be according to each individual Order Confirmation or, if you accepted these Terms upon your access/use of the Service pursuant to Section 1.4, as announced on our Platform from time to time.

8.1.2) Unless otherwise agreed between the Parties, the Customer shall pay for the Service(s) hereunder in advance, prior to or in connection with the start date, of the relevant Service(s) to be provided to the Customer hereunder. Depending on the ordered Service(s) and/or the specific terms of an Order Confirmation, payment of fees hereunder is either made by the Customer according to the invoice issued by Flarie or by debit or credit card via the available payment solution(s) on the Platform.

8.1.3) If you accept these Terms by using/accessing any of our Services pursuant to Section 1.4, the fees available on our Platform applies, and we have a right to invoice or charge the relevant debit or credit card as submitted by the Customer via the available payment solution(s) on the Platform in advance for such Services as well. Fee amendments may apply for such Services pursuant to Section 8.2.1.

8.1.4) Fees related to the Customer exceeding the applicable hosting volume (number of Game loads) pursuant to Section 3.6 shall be charged by Flarie in arrears, on a monthly basis, based on the Customer’s actual usage of such additional Game load volume.

8.1.5) If the Customer adds a certain feature or upgrades its Flarie Studio Subscription during the current subscription period, the Customer shall gain immediate access to the new or upgraded Service. The Customer will be charged a pro-rate fee, calculated based on the new price thereto, for the remaining time of the current subscription period. The pro-rate fee will be billed in connection with the relevant upgrade, and the full price of the upgraded Flarie Studio Subscription for the subsequent period will be billed prior to or in connection with the start date of such period, as set out in these Terms.

8.1.6) The payment period for issued invoices attributable to the Service(s) hereunder shall be net thirty (30) days.

8.1.7) If payment has not been made when due, Flarie has the right to interest from the date on which the payment was due with the interest rate at each time prevailing according to the Swedish Interest Act (Sw. Räntelagen) as well as debt recovery fees in accordance with the Swedish Debt Recovery Act (Sw. Inkassolagen).

8.2 Fee amendments etc.

8.2.1) Flarie may change the fee for any extended or renewed subscription period(s) for the Services hereunder, provided that Flarie submits a written notice to the Customer at least thirty (30) days prior to the end date of the current subscription period in force of the Service(s).

8.2.2) Fees for the Flarie Studio Subscription are based on current economic conditions and such fees do not include any inflation beyond the first subscription period thereto. Therefore, Flarie may on a yearly basis, at the beginning of each calendar year, adjust the fee for a Flarie Studio Subscription in accordance with the changes in the Statistics Sweden’s (Sw. Statistiska Centralbyrån) Labour Cost Index (LCI) for non-manual workers preliminary index, SNI 2007 class J (Information- and communication companies). If the index regulation is below 3%, the Flarie Studio Subscription fee will automatically, and without any prior written notice to the Customer, increase upon a renewal or extension by a Flarie Studio Subscription by 3%. For the avoidance of doubt, Flarie may only conduct such adjustments to the fees as prescribed in this Section 8.2.2, for new, extended or renewed Flarie Studio Subscriptions.

 

8.3 Taxes

Each Party shall be responsible for payment of its own taxes, fees and other charges in connection with the Service(s) or otherwise pursuant to these Terms.

 

9. INTELLECTUAL PROPERTY; RIGHTS OWNERSHIP

9.1) Neither Party is entitled to use the other Party’s trademarks, trade names or similar without the prior written consent of the other Party, unless otherwise expressly stated in these Terms.

9.2) The Parties agree that neither of them shall, as a result of these Terms, gain any rights of ownership or any other interest, right and/or title to any copyright, patents, trade secrets, trademarks, or any other intellectual property rights owned by the other Party.

9.3) Flarie owns any and all rights, including intellectual property rights whether registered or not, to the Service and the software used for providing the Service, the Platform, the Platform Software, any Content and Customer Content (as applicable and as such content originates from the Platform, containing, among other things, code linked to the Platform Software etc. and are not containing any Pre-Existing IP (defined below) by the Customer), and nothing in these Terms shall be interpreted as a transfer of such rights (or part of such rights) to the Customer or any third party (as applicable). The Customer shall not during or any time after the expiry of these Terms (whether in whole or in respect to support only) in any way question or dispute such ownership by Flarie.

9.4) In the event any pre-existing intellectual property rights (“Pre-Existing IP”), whether registered or not, owned by Customer or any third party referred to by Customer is used and incorporated in Content, and thereby is Customer Content (as such content does not originate from, or include any code linked to, the Platform, Platform Software or any other intellectual property owned by Flarie), or otherwise in the results of the Service pursuant to these Terms, Flarie acknowledges, and undertakes to inform its subcontractors, that such Pre-Existing IP shall be and remain the sole property of the Customer or such other party as the case may be and shall, for the sake of clarity, in no event vest in Flarie or any of its subcontractors.

9.5) Furthermore, Flarie claims no ownership or control over such content submitted and uploaded by the Customer through the upload features available in Flarie Studio, which is used in order to incorporate such uploaded content into and form Customer Content, regardless of whether such content has been changed or modified by Flarie subject to these Terms.

9.6) The Customer is responsible for and hereby confirms that such Pre-Existing IP belonging to a third party (if applicable) that the Customer provides to Flarie, in accordance with these Terms, has been approved by such third party to be shared with and used by Flarie subject to these Terms.

10. OWNERSHIP OF DATA

10.1) All data, excluding personal data and Customer Content, generated in connection with these Terms, through the Platform, or otherwise under these Terms (“Data”) shall be the sole and exclusive property of Flarie or its subcontractors (as applicable). Should the Customer be in possession of such Data, Flarie may at any time request that the Customer transfer and deliver any such Data to Flarie, together with information necessary to reasonably process such Data, in which case the Customer irrevocably assigns all right, title, and interest in and to such Data without further consideration.

10.2) Flarie may share Data with the Customer, and the Customer may use and process such Data pursuant to these Terms and in accordance with applicable laws and regulations. However, the Customer shall treat such Data as confidential information pursuant to the Terms herein and shall not commercially exploit such Data except as permitted under applicable mandatory law. Furthermore, sharing of Data by Flarie to the Customer shall not in any way be considered as a transfer of ownership to such Data.

11. PERSONAL DATA; INFORMATION SECURITY ETC.

11.1 GDPR-compliance; information security etc.

11.1.1) Each Party separately undertakes (as applicable) to collect and process any personal data in accordance with applicable laws and regulations, including without limitation the General Data Protection Regulation 2016/679 ("GDPR”), by for example ensuring the lawfulness of the processing, providing legally required information to data subjects, and granting data subjects such rights as follows from applicable laws and regulations, including GDPR.

11.1.2) Furthermore, the Parties undertake to take the appropriate technical, administrative and organizational security measures needed to protect personal data from accidental, unlawful or unauthorized loss, alteration, disclosure, access, use, destruction or distortion. For the avoidance of doubt, the internally established, and from time to time updated, guidelines and routines of Flarie regarding technical, administrative, and organizational security measures for the processing of personal data, shall in any event apply to Flarie’s processing of personal data.

11.2 Data processing agreement

11.2.1) The Customer’s use of the features in Flarie Studio will cause Flarie to process personal data of End Users on behalf of the Customer. Such features are for example, but not limited to, any use and settings in Flarie Studio for the distribution and provision of Customer Content to End Users, the email communication feature as set out in Section 3.4 and the use of the setting in Flarie Studio resulting in Flarie using a unique identifier provided by the Customer (UUID) to identify the End User. When using the Flarie Studio as well as these features and settings in Flarie Studio, Flarie will act as a processor on behalf of the Customer (being the controller of such personal data), and the Parties shall therefore in connection with the Customer’s acceptance of these Terms enter into the data processing agreement, as available here, (the “DPA”). The DPA is considered an integral part of these Terms.

11.2.2) Further, when Flarie acts as the Customer’s processor hereunder, the Customer (being the controller of the relevant personal data) agrees not to, either directly or indirectly, collect with Flarie Studio, or transfer or enable the transfer of sensitive personal data (i.e., special categories of personal data subject to a higher level of protection according to the GDPR) to Flarie unless otherwise specifically agreed between the Parties.

11.2.3) In the event a Party shall processes personal data about individuals as a processor on behalf of the other Party, in any other way than as described in these Terms, the Parties undertake to, prior such processing, enter into a personal data processing agreement governing the relevant set up, in accordance with the GDPR.

11.3 Flarie as a data controller

11.3.1) Without prejudice to Section 11.2, upon the provision the Services to Customer and as a result of Customer’s distribution of the Customer Content (that includes Content) in accordance with these Terms, Flarie will in connection thereto also collect and process certain personal data of End Users as a controller in relation to the included Content by Flarie. For the avoidance of doubt, this occurs solely for the purpose of fulfilling the obligations and rights towards End Users in accordance with the separate Software Terms (including, for example, to monitor, investigate, restrict, and take enforcement actions in relation to unusual, suspicious or unauthorized End User behaviour of the Platform Software) and Flarie shall not be considered as a controller of End User’s personal data in any other manner as a result of the Customers distribution of Customer Content under these Terms.

11.3.2) Furthermore, Flarie is responsible for all other processing of personal data in connection with Flarie’s provision of the Services to the Customer, including processing of personal data required to administrate the Customer’s User Account (e.g. Ordering Party or Representative personal data). For further information of such Service-related processing of personal data, please see Flarie’s Privacy Policy available here.

12. CONFIDENTIALITY AND PUBLICITY

12.1) Each Party agrees, without limitation in time, not to reveal to third parties any confidential information, which a Party (”Receiving Party”) obtains from the other Party (”Disclosing Party”), or which arises during the performance under these Terms, unless required by law or other constitution or decision or judgment of a court, authority, regulatory authority, stock exchange or similar entity. Confidential information shall mean any item of information – technical, commercial or of any other nature – regardless of whether or not such information has been documented, with the exception of information, which is generally known, or which becomes a matter of general knowledge in a manner other than through the Receiving Party’s breach of the Terms.

12.2) Notwithstanding what is stipulated in this Section 12, a Party may for commercial purposes, give permission to the other Party to showcase the existence of certain Services and the result thereof, including, for example, activity data, design data and images/videos attributable to such Service, as reference cases and similar on the Party’s websites, social media channels, in presentations, e-mails and meetings. Such permission may include a right to use the other Party’s name and logo for such commercial purposes as specifically agreed between the Parties.

12.3) Customer has the right to promote the Platform, however, only to the extent that there is no ambiguity among the public that Flarie is the owner of the Platform. For the avoidance of doubt, this shall not impact the Customer’s right to promote the Customer Content.

12.4) Upon termination of these Terms, all confidential information transmitted hereunder in written or tangible form shall, unless otherwise agreed, be promptly returned to the Disclosing Party or destroyed upon written request at the option of the Disclosing Party.

13. REPRESENTATIONS AND WARRANTIES

13.1) Each Party represents and warrants to the other Party that:

(i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation; and

(ii) it has the full right, power and authority to enter into these Terms, to grant any rights and licenses granted hereunder and to perform its obligations hereunder.

13.2) Flarie represents and warrants to Customer that:

(i) the technology and source code of the Platform contributed by Flarie as part of the Service, is in compliance with the Terms, as well as Swedish laws, rules and regulations (including applicable data protection legislations); and

(ii) the technology and source code of the Platform will not infringe any intellectual property rights or any other rights of any third party.

13.3) The Customer represents and warrants to Flarie that:

(i) Customer Content, and any distribution thereof, is in compliance with the Terms, as well as applicable laws and regulations;

(ii) Customer Content will not infringe any intellectual property rights or any other rights of any third party;

(iii) Customer Content is not defamatory, libellous, slanderous, obscene or likely to cause offence; and

(iv) Customer’s use of the Services including any tools and features therein is in accordance with these Terms and applicable laws and regulations.

14. INDEMNITY; DISCLAIMER

14.1) As a user of the Service, you are solely responsible to ensure that your use of the Service (including for example, but not limited to, Flarie Studio, the User Account, the Platform Software, the Content, and any other related materials, tools, rights and similar by Flarie) is in accordance with (i) its intended use, (ii) these Terms as well as any Additional Terms stipulated by the Parties, and (iii) our instructions and guidelines, as provided to you from time to time. You may only use the Service at your own risk.

14.2) Our intention is that the Service shall be available at all times, and we strive to correct any errors and deficiencies without undue delay. Unless specifically agreed otherwise in an Order Confirmation, you hereby confirm that Flarie does not guarantee that the Service (or parts of the Service) or access to the Platform will be provided without interruptions, disturbances, delays or other errors.

14.3) Subject to the limitation of liability in Section 15.3 and 15.4 below herein, Flarie agrees to indemnify and hold Customer harmless from and against direct losses in connection with any claim arising out of (i) Flarie’s material breach of these Terms, and (ii) Flarie’s breach of the warranty in Section 13.2.

14.4) Customer agrees to indemnify, defend, and hold Flarie, harmless from and against all claims, losses, or demands of liability, including but not limited to reasonable attorney’s fees and costs in connection with any claim arising out of the Customer’s or its officers, agents, employees or other representatives breach of (i) these Terms and/or (ii) any of the warranties in Section 13.3.

15. LIMITATION OF LIABILITY

15.1) Unless specifically stated otherwise in these Terms, and particularly in Section 13.2 or the Additional Terms, the Service is provided “as is” without any warranties of any kind from Flarie, whether expressed or implied, as to the accessibility, quality, suitability, accuracy, etc. of the Service. Notwithstanding the aforesaid, Flarie will use best efforts to ensure the accessibility, quality, suitability, accuracy, etc. of the Service.

15.2) Unless expressly stated otherwise in these Terms, and particularly Section 14.3 or any Additional Terms, Flarie hereby disclaims, to the extent permitted by law, from liability for any direct and indirect damages suffered by the Customer or any third-party in connection with the use of or obstruction in the use of the Service, regardless of how the damage occurs and whether the damage is caused by negligence or breach of contract on our part.

15.3) Except in cases of Flarie’s gross negligence or wilful misconduct, under no circumstances shall Flarie be held responsible for or be obligated to take any action in the event third parties or End Users use, cheats, mods and/or hacks, the Service or any other third-party software products, that may change the result of a Game or any Content as well as Customer Content containing any type of Challenge or similar through which End Users can win a Prize. Notwithstanding the aforesaid, Flarie will use best efforts to prevent any of the above from happening and, if feasible, informing the Customer of detected suspicious End User behaviour affecting the Customer.

15.4) Notwithstanding anything to the contrary in these Terms, Flarie’s liability hereunder shall be limited to compensation for direct damages. Furthermore, Flarie’s total liability for any and all damages under these Terms, for whatever reason, shall in no event exceed the total amount paid by the Customer, in the aggregate, for the Services during the twelve (12) months preceding the occurrence of the damage that gave rise to Flarie’s liability hereunder.

16. FORCE MAJEURE

Neither Party shall be liable for any loss, delay or failure in performance of any part of these Terms to the extent that such loss, delay or failure is caused by fire, flood, explosion, accident, war, strike, embargo, governmental requirements, civil and military authority, civil unrest, data trespass, inability to secure materials or labour, epidemics or pandemics, or any other event or circumstance that is beyond such Party’s reasonable control.

17. AMENDMENTS; CHANGES TO THE SERVICE

17.1 Term amendments

17.1.1) Unless agreed otherwise in any Additional Terms, these Terms may be amended by us from time to time at our sole discretion. The latest version will always be available on the Platform, and we therefore advise you to review the Platform periodically for any changes. A copy of the latest version of these Terms will be sent to you upon your request.

17.1.2) Non-material changes to the Terms will become effective immediately when they are uploaded on the Platform or as agreed in any Additional Terms. However, we will notify you by message to your User Account or by e-mail to the address provided upon registration of your User Account thirty (30) days in advance prior to any material changes come into force. Your continued use of the Service after an amendment of these Terms shall constitute an agreement by you to be bound by such amendment(s), unless otherwise agreed between the Parties in any Additional Terms.

17.1.3) In the event the Customer does not wish to be bound by a material change that Flarie may implement from time to time in accordance with Sections 17.1.1 and 17.1.2, due to the material negative effect such a change has on the Customer, the Customer may terminate the Terms before the relevant change come into effect. In such case, Flarie shall, without undue delay but no later than thirty (30) days after Flarie has received the notification of termination, refund any fees paid by the Customer for the remainder of the Services not yet delivered upon such termination (if applicable).

17.2 Service amendments and software updates

17.2.1) Unless agreed otherwise in any Additional Terms, Flarie may, in order to amend and improve our Services, at any time alter, modify, correct, amend, and make other changes to the Service (including but not limited to the Content and Platform Software), as well as to temporarily remove access to the Service due to maintenance of the Service, without any liability to you. However, if such changes to the Service are expected to have a material impact on the Customer’s use of the Platform, Flarie shall if technically and practically possible, provide the Customer with a reasonable prior written notice.

17.2.2) Furthermore, Flarie may from time to time modify and/or release subsequent versions of the Platform Software. In order to ensure certain functionality, you may be required to use the most recent version of the Platform Software or Service. Updated versions of the Platform Software will be made available in Flarie Studio. Customer is responsible for using the current version of the Platform Software as soon as such version is released by Flarie.

18. COMMUNICATION

We communicate with you and other parties involved in our Service in various ways (both online and offline). Our communication methods include, but are not limited to, phone, communication via the internet, by e-mail, via our Platform and other digital tools as available from time to time. While these are effective means of communication, they contain security and confidentiality risks, and we do not accept any responsibility or liability for any loss or damage suffered as a result thereof.

19. GENERAL PROVISIONS

19.1 Assignment

Neither the Terms nor any of the rights or obligations hereunder may be assigned or transferred by a Party without the prior written consent of the other Party. However, notwithstanding the foregoing, a Party may assign the Terms or any of the rights or obligations hereunder to a legal entity controlled by, or in common control with such Party, without the prior written consent of the other Party.

19.2 Entire agreement; Severability

These Terms constitutes the entire agreement between the Parties relating to the subject matter hereof. A determination that any provision of these Terms is invalid or unenforceable shall not affect the validity or enforceability of any other provision hereof.

19.3 Subcontractors

Flarie may use subcontractors for the performance of the Service and its obligations under these Terms, and the Customer hereby accepts such use of subcontractors. Flarie shall however remain responsible for the performance of such subcontractors as for its own.

19.4 Legal relationship between the Parties

Each Party will act as an independent contractor under these Terms, and nothing herein shall be construed as creating a joint venture or partnership as set out in the Swedish Partnership Act (Sw. lagen om handelsbolag och enkla bolag) between the Parties.

20. GOVERNING LAW AND DISPUTE RESOLUTION

20.1) These Terms and all issues in connection herewith or the use of our Service shall be governed by and construed in accordance with the substantive laws of Sweden, without respect to conflict of law principles.

20.2) Any dispute, controversy or claim arising out of or in connection with these Terms, or the breach, termination or invalidity thereof, or regarding our Service, shall be finally settled by the Swedish courts, with the Stockholm district court (Sw. Stockholms tingsrätt) as the court of first instance.