TERMS AND CONDITIONS OF USE - DATA AND DATABASE
These terms and conditions are to be read together with, and as a complement to, the provisions of the Service Contract (the ”Service Contract”) entered into between:
(1) the entity of Intended Future AB as listed in Part I or the Service Contract (“IFAB”), and
(2) the Client(s) listed in Part I of the Service Contract (the “Client”, and together with “IFAB”, the “Parties”).
Whereas:
(A) Since 2021, the IFAB has been providing perceived quality benchmarking and other services mainly to the automotive industry.
(B) IFAB offers its clients access to benchmarking data via a platform of several benchmarking services (Customer’s View, Craftmanship Analysis, Customer Satisfaction), which the clients may access directly on the internet.
(C) The Client wishes to have access through the IFAB internet portal to certain services provided by IFAB and specified in the Service Contract (including the Exhibits thereto) (the “Services”) and, in particular, to be granted access to IFAB’s data via IFAB’s database and IFAB’ software and IFAB is willing to provide such Services to the Client.
Now, therefore, in consideration of the premises and of the mutual promises and covenants contained herein and in the Service Contract, the Parties agree as follows:
A. Definitions
In addition to terms defined elsewhere in these terms and conditions of use, the following terms shall have the meanings set forth below:
“Data” shall mean all data and information contained in the Database, whether such data or Information is in written, electronic, or other forms. Data are owned by IFAB.
“Database” shall mean Version provided after logging in at intendedfuture.se.
“Intellectual Property Rights” shall mean all intellectual property, industrial property rights, and other proprietary rights in any jurisdiction throughout the world, whether registered or unregistered, including, without limitation, all patent, author’s rights, copyright, trademark, trade secret, know-how, design, model, software, data and database rights;
“Person” shall mean any individual, corporation, association, partnership, limited liability company, joint venture, estate, trust, or unincorporated organization or any government or any agency or political subdivision thereof and shall include any partner, officer, director, member or employee of such Person.
“Service Agreement” shall mean these terms and conditions and the Service Contract.
B. Access to the Data and Database
Subject to the Service Agreement, IFAB hereby grants to the Client, for internal use solely by its employees (not including, for the avoidance of doubt, employees of affiliates of the Client unless otherwise explicitly agreed in writing by IFAB) meeting the conditions detailed in the Service Contract (the “Authorized Users”), a limited, revocable, non-transferable, non-sublicencable, nonexclusive, personal, right to access the Data and the Database (and the related Services) solely via the IFAB internet portal.
This right to access is granted on a non-exclusive basis, and nothing contained in the Service Agreement shall be construed to restrict IFAB from itself using, and/or authorizing any other person at any time to use the Data and/or the Database. Without limiting the generality of the foregoing, IFAB may share data and other information about the Data and/or the Database with third-parties for a fee or otherwise.
C. Maintenance
During the term of the Service Agreement and provided that the Client fulfilled its obligations thereunder (in particular its payment obligations), IFAB shall, within a commercially reasonable time period, provide the Client with all maintenance releases and updates to the Data and the Database that IFAB releases generally to its clients. IFAB shall not have any obligations to release updates, improvements or developments to its Data.
D. Ownership
The Client acknowledges that as between the Parties all Data, Database and all Processed Data (defined below) and Feedback (defined below), including in each case all modifications, enhancements or derivative works thereof and all Intellectual Property Rights in the foregoing, are the exclusive property of IFAB (collectively, “IFAB Property”). The Client acknowledges that IFAB has and retains all Intellectual Property Rights to the IFAB Property, including author’s rights or copyright and the right of databases’ producers, and may have Intellectual Property Rights on the Data, including author’s right or copyright on the pictures contained in the Database. The Client shall not, and shall cause its Authorized users not to, during the term of the Service Agreement or at any time thereafter, directly or indirectly:
i. challenge or contest, or assist any third-party in challenging or contesting, the existence and/or validity of any IFAB Property;
ii. attempt to register any such IFAB Property in any jurisdiction; or
iii. challenge or contest, or assist any third-party in challenging or contesting, the existence and/or validity of any of IFAB Property.
Without limiting the generality of the foregoing, the Client expressly acknowledges and agrees that, the Data in the Database is selected, compiled, coordinated, arranged and prepared by IFAB through the application of methods and standards of judgment used and developed through the expenditure of considerable work, time and money by IFAB. The Client also expressly acknowledges and agrees that the Data and the Database are valuable assets of IFAB and the Client agrees that it shall prevent any unauthorized use of the information provided to it concerning the selection, compilation, coordination, arrangement and preparation of the Data and/or the Database and any unauthorized use of the Database and/or Data.
Except as otherwise specifically provided herein, IFAB reserves all rights in the IFAB Property, and other than the limited access rights granted in Article 0, the Service Agreement shall not be construed to confer upon the Client any other rights, including any ownership right or equity interest in, the Data, the Database, or any Intellectual Property Rights.
For the avoidance of doubt, the Client does not obtain, by virtue of the Service Agreement or otherwise (unless pursuant to a separate agreement between the Parties) any rights to use any Intellectual Property Rights or materials of IFAB (or its licensors), including without limitation, any branding, trademarks, service marks, website content, advertising, marketing materials or other materials of IFAB, and the Client shall indemnify, defend, and hold harmless IFAB for any losses (of any kind) incurred by IFAB in connection with any such unauthorized use.
The Client acknowledges that the Data and the Database, the compilation and composition thereof, and any changes therein, are and will be in the complete control and sole discretion of IFAB.
The Client acknowledges that any document, whatever its nature, and any deliverables provided to the Client by IFAB within the performance of the services covered by Service Agreement are the exclusive property of IFAB. The Client acknowledges that IFAB has and retains all Intellectual Property Rights in these documents and deliverables. The Client shall not, during the term of the Service Agreement or at any time thereafter, directly or indirectly use, exploit, reproduce, communicate, publish, transfer these documents and deliverables to any third-party without the prior written approval of IFAB.
The Client agrees that, without limiting IFAB’s non-disclosure obligations respecting the Client’s confidential information pursuant to Article I, IFAB is the exclusive owner of all rights in any data that IFAB develops that is derived from or based on the user activity of users of its websites and Database, including the Client and its Authorized Users, or from any data or content on the Database (collectively, the “Processed Data”), and nothing herein shall limit IFAB’s use or exploitation of the Processed Data for any purpose whatsoever. The Client acknowledges that IFAB may use tools, scripts, software, and utilities to administer the Database and monitor the use thereof by users of the Database, including the Client and Authorized Users and other users of the Database. Data derived from such activity or users is Processed Data hereunder.
If the Client elects to provide any feedback or suggests any features, functionality, additions, changes or modifications to the Database or the website portal (“Feedback”), IFAB will own all right, title, and interest in, and shall have all rights to use, such Feedback. The Client hereby irrevocably assigns to IFAB all right, title, and interest in and to the Feedback and agrees to provide IFAB any assistance IFAB may require to document, perfect, and maintain IFAB’s rights in the Feedback.
E. Specific Restrictions
The Client shall access the Data and the Database solely for internal purposes (i.e., only by the Client’s Authorized Users solely for the benefit of the Client).
During the term of the Service Agreement and thereafter for the whole legal duration of IFAB’s Intellectual Property Rights (including any future extensions):
i. The Client may not reengineer or reproduce the Database, market, distribute, transfer or sell the Database and any part of the Data. Further, in no event shall the Client itself (or authorize any third-party to) distribute, display, publish, or otherwise make available the Data or the Database to any third-party (except for Authorized Users) without the prior written consent of IFAB. The Client shall not provide any information about the Data and the Database to third-parties that would provide a mechanism for reproducing any field, element, component, classification, code, calculation, formula, selection criteria, methodology and the like of any Data or of the Database;
ii. The Client shall not access or attempt to access any other IFAB systems or software, programs or data that are not made available for the Client’s use pursuant to Service Agreement or not made available for public use, or reverse engineer, decompile, or otherwise seek to discover the source code of any IFAB software;
iii. The Client shall not create (and shall not authorize any third-party to create), derivative works or products from, reproduce or further transmit or distribute, the Data or the Database in any type of format or by any means, including but not limited to the internet, its intranet or other types of network. Further, the Client shall not (and shall not authorize any third-party to) use the Data and the Database to construct or facilitate the construction of other databases; or to take any actions that would be aimed at circumventing the Client’s or any third-party’s need to continue to use the Data and the Database; or use the Data or the Database to develop or enhance any product that competes, directly or indirectly in IFAB’s reasonable judgment with the Database;
iv. The Client shall abide by any and all copyright notices, information, or restrictions contained in the Database and/or Data. Massive downloading of Data (i.e. any kind of downloading through automated means and/or any downloading that is inconsistent with a normal access to the Database, as reasonably determined by IFAB) shall be considered as a violation of the Service Agreement. The Client shall not work around any technical limitations in the Database; use any tool to enable features or functionalities that are otherwise disabled in the Database; or perform or attempt to perform any actions that would interfere with the proper working of the Database, or prevent access to or the use of the Database by IFAB’s other licensees or customers;
v. If IFAB provides the Client with one or more passwords or other security measures in connection with the Service Agreement (and the access and services provided hereunder) then the Client shall ensure that the passwords are protected and only used by Authorized Users and shall comply with any security procedures or technical requirements that are reasonably requested by IFAB and that such Authorized Users comply with the Service Agreement. For the avoidance of doubt, obligations of the Client hereunder should be read to apply to the Client’s Authorized Users. The Client shall be responsible for all uses of the Database by any person using such passwords and other credentials. Without limiting the foregoing, the Client is responsible for the use of the Database by any person or entity to whom the Client has given access to the Database and/or as a result of the Client’s failure to use reasonable security precautions, even if that use was not authorized by the Client. The Client shall promptly inform IFAB with all relevant details if the Client has reason to believe that the safety, security or confidentiality of a password, Data, the Database or service has been or may be compromised, and the Client shall reasonably cooperate with IFAB in connection with the investigation and resolution of the foregoing; vi) The Client acknowledges that IFAB may monitor the Client’s access to the Database and the IFAB internet portal. If at any time IFAB is of the opinion that the Client is not properly accessing the Data or the Database or any other service pursuant to the terms of the Service Agreement, and/or the Client is in breach of its obligations under the Service Agreement, IFAB may give notice to the Client to that effect. Upon receipt of such notice, the Client shall promptly remedy to such improper use or breach. If the Client fails to do so within 30 days of the receipt of the notice, IFAB shall be entitled to suspend the access to the Data and/or the Database of the Client, without any reimbursement or liability to the Client, and/or to take any other remedial measure it may deem appropriate;
vi. The Client shall not use the Data or the Database except as expressly permitted under the Service Agreement, or use the Database in any way that would violate any law applicable to the Client or IFAB; and
vii. The Client shall not transfer any of the rights granted to the Client under the Service Agreement, or cause or permit any person other than the Authorized Users to access or use the Database, including via the internet portal, or any Services. Any use of the Data and/or the Database in violation of this Article E is a material breach of the Service Agreement and IFAB can immediately terminate the Service Agreement. Notwithstanding anything to the contrary herein, IFAB may immediately suspend the access to the Data and/or the Database of the Client, without any reimbursement or liability to the Client, and/or to take any other remedial measure it may deem appropriate, if IFAB reasonably determines, in its sole discretion, that the Client’s access to the Data and/or the Database poses a threat to any IFAB Property (including in the event of massive downloading) or may otherwise result in substantial losses for IFAB.
F. Warranty and disclaimer
Each Party represents and warrants to the other that it has the authority to enter into the Service Agreement according to their terms, and that their execution and delivery of the Service Agreement and their performance thereunder will not violate any agreement applicable to it or violate any laws, rules or regulations applicable to it.
THE DATA AND THE DATABASE ARE PROVIDED AS-IS AND, WHILE IFAB USES COMMERCIALLY REASONABLE PRECAUTIONS TO ENSURE THE QUALITY OF THE DATA AND THE DATABASE, IFAB DOES NOT GUARANTEE THE ACCURACY AND/OR THE COMPLETENESS OF THE DATA, THE DATABASE, OR ANY OTHER DATA RELATED THERETO, AND IFAB SHALL HAVE NO LIABILITY FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS THEREIN. IFAB MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO ANY INFORMATION OBTAINED BY THE CLIENT OR ANY OTHER PERSON OR ENTITY FROM THE ACCESS TO THE DATA, THE DATABASE, OR ANY OTHER DATA RELATED THERETO. IFAB MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE DATA, THE DATABASE, AND ANY OTHER DATA RELATED THERETO. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL IFAB HAVE ANY LIABILITY FOR ANY LOSS OF PROFITS OR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IFAB MAKES NO WARRANTIES WITH RESPECT TO THE ACCURACY, COMPLETENESS, FUNCTIONALITY, SAFETY, PERFORMANCE, OR ANY OTHER ASPECT OF ANY DESIGN, PROTOTYPE OF FINAL PRODUCT DEVELOPED BY THE CLIENT USING THE DATABASE OR DATA. THE CLIENT AKNOWLEDGES THAT OBJECTS, NAMES, TRADEMARKS, SERVICE MARKS, DESIGNS, MODELS OR WORK OF AUTHORSHIP DEPICTED IN ANY DATA MAY BE PROTECTED BY INTELLECTUAL PROPERTY RIGHTS BELONGING TO THIRD-PARTIES. THE CLIENT AKNOWLEDGES THAT IFAB AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY USE BY THE CLIENT OR A THIRD PARTY OF THE OBJECTS, NAMES, TRADEMARKS, SERVICE MARKS, DESIGNS, MODELS OR WORK OF AUTHORSHIP DEPICTED IN ANY DATA.
In no event shall the cumulative liability of IFAB and its affiliates to the Client under or relating to the Service Agreement at any time exceed more than half of the amount of Fees actually received by IFAB pursuant to the Service Agreement.
G. Use of Information
When registering, the Authorized Users are required to provide certain information, such as company, name, position, department, area of interest and professional contact details (e.g. address, e-mail address and telephone number). IFAB also collects information relating to Authorized Users' usage of the Data, the Database and the IFAB internet portal. As part of their contractual relations, IFAB may transfer aggregated or deidentified usage statistics to the Client which undertakes to comply with the all applicable laws and regulations on personal data processing (“Regulation(EU 2016/679 of the European Parliament and of the Council of 27 April 2016” or “California civil code 1798 et seq.”). The Authorized Users may exercise their rights relating to such data against each Party which undertakes to inform the other of any request received in this respect. This information must be communicated as soon as possible and no later than forty-eight hours after the receipt of the request. Each Party shall assist the other, insofar as this is possible, for the fulfilment of its obligation to respond to requests for exercising the data subject's rights. IFAB will collect and process all personal information in accordance with its General Privacy Notice and/or Privacy Notice (California Residents), which can both be found on IFAB’s website. The Client is expected to read carefully such General Privacy Notice and/or Privacy Notice (California Residents) ensure that its employees and especially the Authorized Users are aware of these notices.
H. Non Solicitation
The Client covenants and agrees that during the term of the Service Agreement and for twelve (12) months after the termination or expiration thereof, regardless of the reason for the termination, the Client will not, directly or indirectly, on their own behalf or on behalf of or in conjunction with any Person, recruit, solicit, or induce, or attempt to recruit, solicit, or induce, any employee of IFAB or of its affiliates, to terminate their employment relationship with IFAB and/or one of its relevant affiliates.
I. Confidentiality
Each Party undertakes not to disclose to a third-party any confidential information provided by the other Party and/or its affiliates, and each Party shall take all appropriate actions to keep such information confidential, unless: i. agreed in writing between the Parties; ii. the relevant information was made public in a manner other than by violation of this Article by the Party intending to disclose it; iii. the disclosure is required by law or regulations; and/or iv. the disclosure is necessary or advisable to enable a Party to enforce its rights hereunder.
J. General provisions
Survival
The following provisions will survive any expiration or termination of the Service Agreement: Article A (Definitions); Article D (Ownership); Article E (Specific Restrictions); Article F (Warranty and Disclaimer); Article G (Use of Information); Article H (Non Solicitation); Article I (Confidentiality); and Article J (General Provisions).
Waivers
A waiver of any term, provision or condition of, or consent granted under, the Service Agreement shall be effective only if given in writing and signed by the waiving or consenting Party and then only in the instance and for the purpose for which it is given. For the purposes of the Service Agreement and all agreements executed pursuant hereto, no course of dealing between or among the Parties and no delay on the part of the Party in exercising any rights hereunder or thereunder shall operate as a waiver of the rights hereof and thereof. Save as expressly set out in the Service Agreement, the rights and remedies therein provided are cumulative with and not exclusive of any rights or remedies provided by law.
Severability
Whenever possible, each provision of the Service Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Service Agreement shall be deemed prohibited or invalid under such applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, and such prohibition or invalidity shall not invalidate the remainder of such provision or the other provisions of the Service Agreement. To the extent necessary and in the event a provision is held prohibited or invalid, the Parties shall agree in good faith to make any amendment required to the Service Agreement to reflect the commercial understanding between the Parties.
Effect of Heading
The headings in the Service Agreement are for convenience only and shall not affect the construction thereof.
Successors and Assigns
The Service Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties thereto as contemplated therein. Neither the Service Agreement nor the rights provided thereunder may be assigned by any Party without the prior written consent of the other Party hereto. Notwithstanding, IFAB may assign any of its rights or obligations thereunder to any of its affiliates upon prior written notice to the Client.
No Partnership or Agency
Nothing in the Service Agreement or in any document referred to therein shall be deemed to constitute a partnership or agency relationship between any of the Parties or any other person.