Terms of Service
IMPORTANT. PLEASE READ THROUGH THE FOLLOWING TERMS AND CONDITIONS BELOW BEFORE USING THE SERVICE IN ANY WAY. By entering the Subscription Agreement (as defined below), Customer (as defined below) accepts these terms, which consequently become binding obligations on Customer.
Customer has agreed that these terms and conditions together with what is set out in the Subscription Agreement are the complete and exclusive terms and conditions between the Parties (as defined below) and supersedes all other proposals and prior agreement, oral or written, between the Parties relating to the subject matters herein.
These terms and conditions apply to the Services provided through the Software (as defined below) by Timber Exchange Europe AB, corp.reg. no. 559174-1477 (“Timber Exchange”) to customers.
“Agreement” means these terms and conditions as amended from time to time and the Subscription Agreement combined;
“Customer” means the company, organization, institution or private person, using the Service;
“Confidential Information” has the meaning ascribed to it in Section 9.1 of these terms and conditions;
“Data Controller” has the meaning ascribed to it in the GDPR;
“Disclosing Party” has the meaning ascribed to in in Section 9.1 of these terms and conditions;
“Equipment” has the meaning ascribed to it in Section 5.3 of these terms and conditions;
“GDPR” means the EU Regulation 2016/679 (General Data Protection Regulation);
“Party” means each of Timber Exchange and Customer, collectively referred to as “Parties”;
“Personal Data” has the meaning ascribed to it in the GDPR;
“Purpose” has the meaning ascribed to it in Section 3.1 of these terms and conditions;
“SCC” means the Stockholm Chamber of Commerce;
“Service” means the services described in the Subscription Agreement, which are made available through the Software and subject to the Agreement;
“Software” means (i) all of the contents of the data files or other media in machine-readable form provided under the Agreement and made readable through the Website, including (a) all software provided by Timber Exchange and (b) Third Party Software provided, included in such software;
“Software Supplier” means each company that is a copyright holder in relation to Third Party Software and that have granted Timber Exchange a license to use Third Party Software;
“Subscription Agreement” means the agreement made between the Parties, stating inter alia the Service’s content and the applicable fees for the Service;
“Third Party Software” means software with copyright not owned by neither Timber Exchange nor Customer;
“Timber Exchange” has the meaning ascribed to it in Section 1 of these terms and conditions; and
“Website” means www.timber.exchange.
The purpose of the Service
- The Service is made available to operators in the timber industry to facilitate and streamline the supply chain and logistics management when trading with timber (“Purpose”). Thus, the Service will be used by inter alia saw mills, buyers of timber, agents and shippers and will enable each user of the Service to interact with and enter into agreements with other users for such Purpose. Timber Exchange will provide the Service’s users tools and functionality for the users to fulfil the Purpose through the Service, subject to the limitations stated in the Agreement.
Timber Exchange’s undertakings
- Timber Exchange will provide the Service during such period as set forth in the Subscription Agreement. The contents of the Service is set out in the Subscription Agreement and subject to these terms and conditions.
Restrictions and responsibilities
- Customer undertakes to at all times use the Service in compliance with the Agreement and all applicable laws and regulations. Timber Exchange is at any time entitled to prohibit Customer’s use of parts of or the entire Service and/or to cancel Customer’s account if Timber Exchange believes that Customer may be (or alleged to be) in violation of the foregoing. Timber Exchange is also at any time entitled to prohibit Customer’s use of parts of or the entire Service and to cancel Customer’s account if Timber Exchange, at its own discretion, deems that Customer and/or its business is, or could be, incompliant with money laundering regulations and/or any other law, regulation or applicable policies.
- What is set out in Section 5.1 above includes for the avoidance of doubt that Customer undertakes to comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Service. Customer represents and warrants that Customer, or any party that owns or controls Customer, is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government, the European Union or its member states, or other applicable government authority.
- Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including without limitation, modems hardware, servers, software, operating systems, networking (“Equipment”).
- Customer is responsible for maintaining the security of the Equipment, Customer’s user accounts, passwords and files, and for all uses of Customer’s user accounts and the Equipment.
- In no event will Customer disassemble, decompile, or reverse engineer the Software in parts or in whole or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behaviour in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling.
- As default, each Party shall be Data Controller for any Personal Data processed by each Party. In the event the Parties explicitly agree that Timber Exchange shall process Personal Data on behalf of Customer, or if Customer would be deemed to do so, the Parties undertake to enter into a data processing agreement (Sw: personuppgiftsbiträdesavtal) regulating such processing.
- Personal Data will be the property of Timber Exchange and/or the private individual to whom the Personal Data refer. Timber Exchange may not, and undertakes not to, disclose Personal Data to Costumer unless required by law or with the consent of the private individual concerned.
- Each Party shall process Personal Data in compliance with GDPR and other Swedish data protect regulations, such as the Swedish Data Protection Act (2018:218).
Ownership and Intellectual Property Rights
- Timber Exchange has sole and exclusive ownership of all right, title and interest in and to the Software, including all copyright trademark, patent, trade secret know-how and other intellectual property rights pertaining thereto, including data generated by the Software, subject solely to the limited right and license expressly granted to Customer herein. Timber Exchange retains all rights to its name and trademarks. With regard to Third Party Software delivered to Customer, all the above mentioned rights shall be owned by the Software Supplier from whom Timber Exchange has acquired the right to use such Third Party Software, subject solely to the limited right and license expressly granted to Customer herein. The structure and code of the Software are valuable trade secrets of Timber Exchange and remain the sole property of Timber Exchange or Software Supplier who owns the Third Party Software in accordance with the foregoing.
- Subject to Customer’s compliance with the Agreement, Timber Exchange grants Customer a term subscription, software as a service, non-exclusive, and non-transferable right to access and operate the object code form of the Software, and consequently the Service, as hosted by Timber Exchange solely and exclusively for the Purpose. Customer further undertakes not to sub-license and/or make available the Service in parts or in whole to any third party.
- This Service is not a sale of the Software or any updates or new releases, or any copy of the Software. Except for the limited license granted under the Agreement, Customer obtains no other rights in or to the Software. There are no implied licenses under the Agreement and Timber Exchange reserves any right not expressly granted to Customer under the Agreement.
Complaints, warranty, limitation of liability and indemnification
- Except as set forth in the Agreement and to the extent allowed by law, Timber Exchange makes no warranties or representations, express or implied, whether by statue, law, custom, usage or otherwise as to any matters, and specifically disclaim any warranty of merchantability, integration, satisfactory quality, or fitness. Without limiting the generality of the foregoing, Timber Exchange disclaims any representations or warranties that the Software e.g. will operate uninterrupted or error free. No oral or written information or advice given by Timber Exchange, its dealers, distributors, agents, or employees shall create a warranty or in any way increase the scope of this warranty. Timber Exchange shall not have any liability for any loss or damage suffered by a third party due to the results of the Service.
- Under no circumstance shall Timber Exchange, nor anyone else who has been involved in creation, production or delivery of the Software nor the Service, have any liability of any kind to Customer or any other person for any special, incidental, consequential (including loss of profits or revenues), punitive or other indirect losses or damages (even if Timber Exchange has been advised of possibility of such potential loss or damage) resulting from or arising of (whether directly or indirectly) any act or omission of any kind hereunder by Timber Exchange, any access to or use by Customer or any other person of the Software, whether based on breach of contract, warranty, tort, product liability, negligence, strict liability or otherwise.
- Customer may only use Third Party Software exclusively for the Purpose. Other than as stated in this Section 8.3, Customer understands that Timber Exchange has no liability in relation to software of which Timber Exchange has no or limited possibility to control. With respect to Third Party Software, Timber Exchange’s liability for faults, errors or intellectual property infringements is exclusively restricted to an obligation to report the fault, errors or infringements to the Software Supplier as soon as reasonably possible.
- Timber Exchange has no liability for any damage/loss attributable to Customer’s breach of the Agreement.
- Customer is aware that the Service, as further described in the Subscription Agreement, is a tool made available to the Service’s users to facilitate the supply chain management of Customer through virtual supply chain collaboration. The Service, and the information contained therein, does not constitute any form of specific advice or recommendation regarding specific solutions, investments or transactions by Timber Exchange. The Service is not intended to be relied upon by Customer in making (or refraining from making) any decisions not directly related with the Purpose. Customer is recommended to engage an authorised financial advisor and legal advisor before making any investment and/or financial decision. Any arrangements between Customer and any third party is an agreement between Customer and such third party and is made at Customer’s sole risk and responsibility. Timber Exchange assumes no liability or responsibility for any payments made between Customer and any third party due to their use of the Service. Timber Exchange assumes no responsibility or liability in relation to that any intended results or specific achievements or goals are met. Timber Exchange assumes no responsibility or liability for any loss or damage suffered as a result of the use by Customer of the results of the Service in any context or for any purpose. Customer is aware that Timber Exchange assumes no responsibility or liability for the quality or condition of any product and/or service that are subject of the transactions made through the Service.
- For the convenience of the users of the Service, the Service may provide suggestions for contractual terms and/or generate documents and agreements (e.g. terms of delivery, letter of credit and purchase orders) for facilitation of the contemplated transaction to be performed through the Service. However, Customer may choose not to use any suggestions and/or generated documents at its own discretion and Customer understands that the users of the Service shall bare sole responsibility for the contents of any generated documents and any terms in any contracts or agreements made between parties through the Service. In no circumstances shall Timber Exchange be deemed to be a party of any agreement or contract made between the Service’s users through the Service. Further, Timber Exchange shall not have any liability for neither the applicability or sustainability of any such terms in any agreements, documents and/or information in documents generated through the Service in any situation and/or in relation to any jurisdiction or otherwise, nor in any other way in relation to documents, agreements, contracts and the content of such agreements, contracts and documents as generated by Customer’s and the Service’s users through the Service.
- Timber Exchange’s liability for any loss or damage shall be reduced by the amount which may be obtained by Customer under any insurance maintained by Customer (or for Customer) or under any contract or indemnity to which Customer is a party or a beneficiary, unless it is contrary to the agreement with such insurance provider or other third party or Customer’s rights against such insurance provider or other third party will be materially prejudiced thereby.
- Under no circumstances shall Timber Exchange’s liability to Customer for losses or damages of any kind arising out of or pursuant to the Agreement, exceed the aggregated fees paid by Customer for the Service during the twelve (12) month period preceding the loss or damage entitling Customer compensation.
- Customer does not have the right to make a claim for damages and losses, unless such claim is made within three (3) weeks from the time the loss or damage occurred.
- Customer shall without delay and subject to the limitations set out in this Agreement notify Timber Exchange of any faults or defects in the Service. Such notification must contain clear information about the nature or extent of the fault or defect. Timber Exchange shall be given an opportunity to rectify any fault or deficiencies within a reasonable period of time. All notices under this Section 8 be made in accordance with Section 14.3.
- Each Party understands that the other Party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Timber Exchange includes, but is not limited to, non-public information regarding features, functionality and performance of the Software. Confidential Information of Customer includes non-public data provided by Customer to Timber Exchange to enable the provision of the Service.
- The Party receiving Confidential Information from the Disclosing Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Software or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the other Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
- Nothing in the Agreement will be construed to convey Confidential Information to Customer or to grant any other right, title, or ownership interest to Timber Exchange’s Confidential Information. Neither Party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these terms and conditions. Each Party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of Confidential Information.
- Notwithstanding what is stated in this Section 9, Customer is aware that Timber Exchange may use certain information provided by the Service’s users to enhance the tools and usability of the Service.
Fee and Payment
- Customer shall pay Timber Exchange the fees set forth in the Subscription Agreement.
- Each invoice will set out the due date for payment, which is thirty (30) days from the date of the invoice. If an invoice is not paid, Timber Exchange reserves the right to charge late payment interest from the due date until receipt of payment in full at the interest rate applicable according to the Swedish Interest Act.
- These terms and conditions will enter into force on the day Customer enters the Subscription Agreement and shall remain in full force and effect until further notice.
- Each Party is entitled to terminate the Service provided under the Agreement subject to three (3) months’ notice.
- In addition to any other remedies it may have, either Party may also terminate the Service upon thirty (30) days’ notice (or for Timber Exchange without notice in the case of non-payment or the case of Customer’s incompliance with applicable law or regulations as described in Sections 5.1 and 5.2), if the other Party materially breaches the Agreement. Customer is obliged to pay in full for the Service up to and including the last day on which the Service is provided. Upon any termination, Timber Exchange will make all Confidential Information of Customer available to Customer for electronic retrieval for a period of thirty (30) days after the date of termination of the Service. After the expiry of such thirty (30) day period, and unless otherwise is required by law, Timber Exchange may, but is not obligated to, delete stored Customer’s Confidential Information. All sections of the Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- In the event that either Party is prevented from fulfilling its obligations under the Agreement due to circumstances beyond its control, including without limitation, wars, acts or orders by the government, department, council or other constituted body, strikes, lock outs, boycotts and other labour disputes, riots, revolutions, sabotage, natural disasters, the unavailability of deliveries or severe weather conditions which effects could not reasonably have been avoided or overcome, or is due to any of either Party’s supplier’s failure to deliver any components to the system due to any circumstance or event herein above described, then such Party shall not be deemed to be in breach of the Agreement. Any performance or non-performance of any of its obligations under the Agreement which are prevented due to any force majeure event shall be postponed and the non-performing Party shall not be liable for the non-performance, defective or late performance of any of the obligations hereunder provided that the Party asserting the excuse gives the other Party prompt written notice of the occurrence of the force majeure event.
Invalidity of provisions
In the event that a provision of the Agreement, or any part thereof, is held to be invalid or unenforceable, any such provision shall to the extent possible be valid and enforceable and shall otherwise be given such meaning that is required for establishing the same effect as the invalid or unenforceable provision (or the part thereof).
- These terms and conditions may be amended by Timber Exchange from time to time. The current version is published on the Website. Any amendments will be communicated to Customer and become effective only in relation to engagements initiated after the amended version was published on the Website, unless Customer has objected at the latest forty-five (45) days after receiving notice of the amendments, however that any use of the Service by Customer after the notification of the amendments have been received by Customer, shall be deemed as Customer’s acceptance of such amendments. If Customer does not accept the amendments, Customer will be deemed to have terminated the Service in accordance with Section 11.2.
- None of Customer’s rights or obligations under the Agreement, or under any other agreement between the Parties, may be assigned or transferred to any other person or legal entity without Timber Exchange’s prior written consent.
- All notices under the Agreement shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- Automatic or manual updates of the Software may be performed without notice to Customer.
Governing law and dispute resolution
- The Agreement (including the arbitration clause in this Section 15), any engagement confirmation, our engagement, our services and any issue or question arising thereunder shall be governed by and construed in accordance with substantive Swedish law, without application of any conflict of law provisions.
- Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the SCC. The Rules for Expedited Arbitrations 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 the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.
- The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English.
- Arbitral proceedings initiated with reference to this Section 15 and all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings, is subject to confidentiality and may not be disclosed by a Party to any third party without the express consent of the other Party. A Party shall, however, not be prevented from disclosing such information to its insurance providers or in order to preserve its rights against the other Party or its insurance providers, or if the Party is required to disclose information pursuant to any law, regulation, decision by an authority, any stock exchange (organised market) contract or similar.
- Notwithstanding what is set out in this Section 15, Timber Exchange shall be entitled to commence proceedings for the payment of any amount due and payable by Customer in any court with jurisdiction over Customer or any of Customer’s assets.
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