TERMS
ARBOAIR AB
1. Introduction
1.1 ArboairAB, reg.no. 559231-4156 (“Arboair”) usesAI driven image analysistoproducecrispdecision supportforforestowners. Arboair’s Servicesare intendedtosupport forestownersandforestbusinesses in their forestry planning and management of their forests by analyzing drone footage in combination with Customer Data and other Input Data.
1.2 These Terms apply to Services provided by Arboair to a Customer according to an Agreement, unless otherwise expressly agreed between the Parties separately in writing. In case of any contradictions between the Agreement (including Arboair’s Quote) and these Terms, the Agreement shall prevail.
1.3 Words and expressions with capital letters herein are defined at the end of these Terms, see the section “Definitions” below.
2. The Services
2.1 In general, the Services include different kinds of analysis of forests and preparation of material which the Customer may use as support in its daily operations. The Services provided by Arboair to the Customer are specified in the Agreement, and if applicable, in other written material to which Arboair has explicitly referred in writing. If the Customer orders any available Add-Ons, such Add-Ons shall upon confirmation by Arboair be considered to be part of the Services to be provided under the Agreement.
2.2 If use of the Services requires an Internet connection, the minimum required capacity will be specified in Arboair’s recommendations and instructions from time to time.
2.3 The Services are considered to have been made available to the Customer, when Arboair has
I) connected the Services to the internet or otherwise made it available for the Customer to use, and
ii) activated the Customer’s account and User licenses. The Services shall be considered available regardless if the Customer actually has connected to or used the Service.
2.4 Arboair may freely engage subcontractors for the performance of the Services and other obligations under the Agreement. Arboair is responsible for the work of such subcontractors as if the work had been performed by Arboair itself. See however section 5 regarding Input Data.
3. Additional Services
3.1 Arboair offers Additional Services, e.g. consultancy services and customer specific integration services and service modules customized uniquely for the Customer, in accordance with the Customer’s instructions. Any Additional Service (not being an available Add-On) will be quoted separately and will be subject to separate terms and conditions.
4. Customer Data and Use of the Services
4.1 The Services may require the Customer to upload Customer Data in order to function properly. The Customer retains, in relation between Arboair and the Customer, all right, title and interest (including, but not limited to, intellectual property rights) in and to Customer Data that the Customer and/or the Customer’s Users uploads or enters into the Services.
4.2 The Customer shall at all times ensure the correctness and legality of the Customer Data and is responsible for any activities carried out by the Customer itself and/or the Customer’s Users. The Customer is under the Agreement liable towards Arboair for its Customer’s Users’ utilization of the Services.
4.3 By providing Customer Data to Arboair via the Services (including Add-Onsand/orAdditional Services), the Customer grants Arboair a free, non-exclusive, irrevocable and perpetual license to use (including without limitation analyzing, modifying, adapting, combining with other information, compiling, transferring and copying) the Customer Data aswell as(if and to the extent such license is necessary) any Results (irrespective of the format and means of transmission) in order to provide the Services and its Results, and to analyze, evaluate, develop and improve the Services (including Add-Ons and Additional Services), and their content or any of Arboair's other current or future services and business areas, as well as the methods, models and algorithms used in Arboair’s business in order to provide and develop services to customers.
4.4 Arboair will not share Customer Data in its pure format with any third party, unless such third party is a subcontractor to Arboair.
4.5 The Customer warrants that all Customer Data
a) has been gathered in accordance with Arboair’s from time-to-time applicable instructions, available at Arboair’s website or otherwise accessible on the Platform;
b) is provided in the file format(s) accepted by Arboair and complies with the minimum quality requirements as instructed by Arboair from time to time;
c) does not include images or depicts of objects that are not legal to portray in a photograph, video, sketch or similar;
d)only consists of data and information that the Customer have the right to share with Arboair and which Arboair may use in accordance with the license provided in section 4.3 without risk for infringement;
e)does not contain any personal data, where personal data has the same definition as in regulation (EU)2016/679;
f) is subject to the Customer’s valid title or sufficient licensing rights; and
g)otherwise is in compliance with the requirements of the Agreement and applicable laws and regulations.
4.6The Customer (and the Customer’s Users)may not use the Services
a) for any unlawful or other purpose for which it is not intended, including to transmit, upload or post any computer viruses, malware, or other actually or potentially harmful files or codes;
b) in any ways that the functionality of the Services is impaired, or in a way that is damaging or disruptive to other customers of Arboair or their use of the Services;
c) in a manner that could be perceived as defamatory or offensive in any way; or
d) in any other way that could reasonably be expected to affect Arboair, or the Services adversely or reflect negatively on the goodwill, name or reputation of Arboair, or the Services.
4.7 Arboair has the right to perform randomized sampling of the Customer Data shared with Arboair via the Services or otherwise. In case any sample indicates non-compliance with Arboair’s instructions, these Terms or the Agreement in general, Arboair shall have the right to perform a full review of all Customer Data originating from the Customer. Arboair shall have the right to reject Customer Data which are not in compliance with this section 4. Additionally, Arboair shall have the right to immediately pause the provision of Services during the period of full review of Customer Data without liability. The Customer shall bear all Arboair’s costs for such review.
4.8 Arboair reserves the right to perform those measures with Customer Data that Arboair deems necessary in accordance with applicable law in order to provide the Services to the Customer, including but not limited to applying for a dissemination permit (Sw. spridningstillstånd) according to the Swedish Act on the Protection of Geographical Information (SFS 2016:319).
4.9 The Customer is responsible for using any third-party products and services referred to in the Services in accordance with the licensing terms issued by the relevant third-party supplier and to which Arboair has referred.
5. Input Data
5.1 The Services are dependent on Input Data, not being Customer Data. Input Data may include data from open sources, such as data from the Land Registry and science institutes, as well as data from subcontractors. The type of Input Data, its form or media may vary depending the chosen Service module, the specific choices and settings made by the Customer's Users, etc. For Input Data, additional terms might apply. Please see Arboair’s third party notice available at Arboair’s website. For avoidance of doubt, any provided Input Data is subject to section 12.
5.2 In case Input Data is collected by Arboair based on instructions from the Customer, the Customer shall provide those instructions necessary and/or requested by Arboair and/or the relevant third party in order to increase the probability of the quality of the Input Data being sufficient for the accuracy of the Services.
6. Customer’s Users
6.1 Arboair will enable the Customer to access the Services via the number of Customer’s Users and the different types of user accounts stated in the Agreement. A valid Agreement is a prerequisite for any Customer’s User to access and use the Services.
6.2 The Customer is responsible for any act of its employees, consultants, Customer’s Users or other persons appointed by the Customer to use or benefit from the Services.
7. Prices and payment terms
7.1 The Customer shall pay the prices for the Services and any Add-Ons and/or Additional Services, as agreed, as set out in the Agreement (e.g. in Arboair’s Quote) or, if nothing else is agreed, the prices set out in Arboair’s from time to time applicable standard price list.
7.2 Prices subject to a Quote (i.e. where Arboair has not explicitly referred to its applicable standard price list) may only be changed once a year during the Agreement period, unless otherwise agreed in the Agreement.
7.3 Arboair has the right to, by giving the Customer one (1) months written notice, change all prices included in Arboair’s price list. The new prices will take effect from the Customer´s next annual or monthly payment (whichever is relevant) or at the later date specified by Arboair in the notice. The Customer has the right to, no later than seven (7) days prior to when the new prices take effect, terminate the Agreement with immediate effect if Customer does not accept the adjusted prices.
7.4 All indicated prices are exclusive of VAT and similar taxes and charges.
7.5 Payment is always due thirty (30) days after the invoice is issued if nothing else has been agreed separately.
7.6 Arboair has the right to charge an administrative fee of SEK 60 for reminders on late payments. Arboair reserves the right to charge late payment interest as set out in applicable law and compensation for late payment fees and/or debt collection fees in accordance with applicable Swedish laws.
7.7 In addition to any other available remedies under the Agreement, if full payment is not received within ten (10) days from the date the written payment reminder was sent by Arboair and the Customer has not on reasonable grounds disputed the claim of payment, Arboair has the right to: (i) immediately suspend the Customer’s access to the Service(s), and/or (ii) terminate the Agreement with immediate effect pursuant to section 18.3.
8. Intellectual Property Rights
8.1 The Services and its content
8.1.1 Arboair, and/or its licensors, holds all rights as well as all intellectual property rights (“IPR”), to the Services, any data not being Customer’s Data and the Documentation, including, without limitation rights to software, code, interfaces, processes, images, graphics, text or other materials as well as the underlying inventions, know-how, methods, models and algorithms etc. for data analysis, visualization or similar. Nothing in this Agreement shall create, imply or be construed as a transfer or waiver of any kind of such rights, or any part thereof, to the Customer.
8.1.2 The Customer shall not copy, modify, create derivative work, reverse engineer or otherwise attempt to discover any source code of, or assign, sub-license or transfer any right in, the Services, data in the Services or part thereof, unless such act is explicitly permitted in accordance with the Agreement.
8.2 User license
8.2.1 Arboair grants the Customer a right to use the Services in its business and in accordance with the Agreement. The right is non-exclusive, time-limited, and non-transferable and applies to the Customer´s internal business for the number of Customer’s Users and the types of user accounts set out in the Agreement, unless otherwise agreed. The right applies during the period for which the Agreement applies and provided that the Customer fulfils its payment obligations and other obligations under the Agreement.
8.2.2 For the avoidance of doubt, Customer has no right to assign, sub-license, lend, transfer its license or in any other way give a third party access to the Services unless explicitly agreed in the Agreement, or otherwise without Arboair’s prior written consent.
8.3 Results
8.3.1 The Customer receives the rights to use the Results of the Services in its internal business and for the purposes set out in the Agreement.
9. Confidentiality
9.1 Confidential Information
9.1.1 For the purposes of the Agreement, the expression “Confidential Information” means all information, irrespective of form (e.g. oral, written, visual) and irrespective of whether marked “Confidential” or not, disclosed by Arboair or Customer (“Disclosing Party”) to the other party (the “Receiving Party”) and relating to the Disclosing Party, for example – but not limited to – information regarding its intellectual property rights, software and technology.
9.1.2 Confidential Information does not include information which, as shown by reference to written records:
a) is or becomes publicly available without any breach of Agreement;
b) was known to the Receiving Party at the time of disclosure by the Disclosing Party; or
c) is received from a third party without a restriction on further disclosure.
9.2 Obligation not to disclose
9.2.1 The Receiving Party may not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent, unless otherwise stated in Agreement. The Receiving Party must take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information.
9.2.2 The Receiving Party may only disclose Confidential Information to such employees, consultants and subcontractors (“Representatives”) of the Receiving Party that has a direct need to know it for purposes not in breach against the terms and conditions of the Agreement. The Receiving Party must ensure that its Representatives are made aware of and are instructed to comply with these contractual obligations regarding the confidentiality of Confidential Information. The Receiving Part is liable for any action or omission by its Representatives in breach of the Agreement.
9.2.3 The obligation to not disclose Confidential Information will not prevent the Receiving Party to disclose information which is required to disclose by law or by a governmental or administrative agency or body or decision by a court of law, or rules of a relevant stock exchange, but then only after first notifying the Disclosing Party of the required disclosure, if such notification is feasible and permitted in accordance with applicable law.
9.3 Use of Confidential Information
9.3.1 The Receiving Party may only use Confidential Information in accordance with the Agreement. It is noted that Arboair undertakes to treat any Customer Data and Results stemming from Customer Data as Confidential Information. However, Arboair may in its business use and disclose information stemming from Customer Data and/or Results in an aggregated and non-reversible or otherwise non-traceable format.
9.4 Ownership of information
9.4.1 All information disclosed pursuant to Agreement will remain the property of the Disclosing Party.
10. Service Levels
10.1 If a service level agreement (“SLA”) is applicable to Arboair’s provision of Services under the Agreement, regarding the Customer’s right to support and availability of the Services, the terms and conditions of the SLA shall apply and have precedence over what is stated in the following sections 10.2 and 10.3 below.
10.2 Arboair will make reasonable efforts to strive keep the Services operational and available on a 7/24/365 basis. However, certain scheduled or non-scheduled maintenance or testing, third party dependencies, technical difficulties and errors, or modifications and updates required to reflect necessary changes, possible changes in relevant laws and regulatory requirements, and similar circumstances may, from time to time, result in interruptions, suspensions and/or amendments to the Services and/or the Customer’s access to and/or use of the Services.
10.3 Arboair reserves the right, periodically and at anytime, to modify or discontinue and disable (and enable), temporarily or permanently, functions and features of the Services all without liability to the Customer or any of the Customer’s Users, except if prohibited by law,for any suspension, interruption, modification, or discontinuation of the Services or any part, function or feature thereof. Arboair will, if possible, notify the Customer beforehand of any known or planned interruptions. In case of security issues, attacks or similar Arboair intend to take immediate action (after becoming aware of such incident) and will likely not be able to notify the Customer of any such efforts.
11. Changes to the Services
11.1 Arboair strives to constantly develop and improve its Services, available Add-Ons and their functionality. Unless the Customer and Arboair has agreed otherwise, Arboair may from time to time amend the design, functionality and the underlying methods, models, algorithms, etc. of the Services. This means that Arboair may also change the technical and administrative procedures applicable to the Services. More information about changes to the Services will be published on the Arboair’s website or communicated through the Platform.
11.2 Unless otherwise agreed, the Customer shall have the right and obligation to access and utilize the latest released version of the Services, as instructed by Arboair from time to time.
12. No Warranties
12.1 Arboair’s Services are heavily reliant on (i) Customer Data and Input Data and (ii) that the Customer and the Customer’s Users comply with the Agreement and Arboair’s instructions and recommendations applicable from time to time. As the Results of the Services are comprised of analysis of i.e. the Customer Data and Input Data, the quality of any Results of the Services are directly related to the quality of such data. The Customer acknowledges that although the Services may in some cases automatically make the Customer and/or Arboair aware of any deficiencies in quality of Customer Data and/or Input Data, such warnings or notices are not comprehensive. Quality deficiencies that may impact the Results may not always be detected or detectable by the Services or by Arboair, and the Customer’s use of the Results shall take into account the risk for consequential errors or omissions due to deficiencies in Customer Data and/or Input Data.
12.2 Arboair’s Services and any Results thereof are therefore provided “as is” and “as available”, without any express or implied warranty or condition of any kind. Arboair makes no representations and expressly disclaims any warranties or conditions of satisfactory quality, completeness or reliability of the Input Data, the Results or analysis made by the Services, merchantability, fitness for a particular purpose, or non-infringement.
12.3 The Customer acknowledges that the analysis performed in the Services in order to produce a Result may vary in duration based upon different variables, e.g. the area and number of hectares analyzed, file quality etc. In general, larger areas require a longer time for analysis than smaller areas.
12.4 For avoidance of doubt and in all cases, the Customer must independently verify the validity of any Results of the Services by suitable measures such as verifying the quality of Customer Data and Input Data, ocular inspection, and sampling of the reliability of any Results, if it wishes to rely on the same in respect of matters of importance and shall do so at its own risk. The Result may only be used as support in the Customer’s decision-making and shall not be seen as comprehensive or an independent decision material. As previously stated, it is noted that the Services as such and consequently the Results have different of margins of error, which may vary depending on different factors that are outside Arboair’s control and for which Arboair cannot and should not be held liable.
12.5 This section 11 applies to the fullest extent permitted by applicable law and unless nothing else is stated in the Agreement.
13. Indemnification
13.1 Customer undertakes to indemnify and hold Arboair harmless from and against all losses, damages and costs of any kind (including reasonable attorney fees and costs) arising out of or related to Customer’s breach of section 4.5 and 4.6.
13.2 For avoidance of doubt, in case of the Customer’s breach of section 4.5 and 4.6, the limitations of liability set out in section 14 shall not apply.
14. Limitation of Liability
14.1 In no event shall either party be liable for (i) any indirect, incidental, unforeseen, special, consequential, punitive or tort damages, nor (ii) for any loss of use or data, or production or for lost profits, savings, goodwill or revenues of any kind (whether direct, indirect or consequential); no matter what theory of liability, even if the party has been advised of the possibility of such damages.
14.2 Each Party´s total liability for all damages, losses and causes of action during one (1) year is limited to 100% of the amount actually paid by the Customer to Arboair for the Services in accordance with the Agreement during the twelve (12) months preceding the time of the event causing such damage, loss or cause of action.
14.3 Arboair is not liable for damages unless the Customer notifies Arboair in writing no later than ninety (90) days after the Customer has discovered or should have discovered the actual damage or loss, but never later than six (6) months from the time the damage occurred.
14.4 The limitation of liability set forth herein does not apply in case of willful misconduct or gross negligence.
14.5 Arboair is never liable for any damages (including but not limited to and for avoidance of doubt all kind of damages and losses listed in section 14.1 above) towards a third party who has benefitted from or relied upon the Result of the Services through the Customer’s provisions of services to such third party, unless Arboair has explicitly in writing accepted such liability.
15. Insurance
15.1 Arboair undertakes to maintain a customary liability insurance suitable to its business throughout the term of the Agreement.
16. Personal data
16.1 Arboair processes personal data and other information about the Customer’s Users and contact persons of the Customer to the extent necessary for Arboair to provide the Services.
16.2 When Arboair processes personal data as envisioned in section 16.1, Arboair is the data controller. For detailed information on how Arboair processes personal data and what rights data subjects have in connection with Arboair’s personal data processing, please see Arboair’s Privacy Policy https://arboair.com/privacy/.
17. Force majeure
17.1 The expression “Force Majeure” means each – or combinations – of the following causes affecting the performance by Arboair of its obligations according to Agreement:
a) epidemic, pandemic, explosion, fire, accident, lightning, tempest, hurricane, flood, fog or bad weather (including rain);
b) outbreak of war, hostilities, riot, civil disturbance, act of terrorism;
c) failure of third party suppliers;
d) disrupted telecommunications and restricted access to Internet;
e) virus, malware, attacks from hackers and similar;
f) compliance with any new or amended law, interpretation of law, or governmental order taking effect after the date of the Agreement; and
g) any cause or circumstances whatsoever beyond the reasonable control of Arboair.
For the avoidance of doubt, the events above are examples only and the examples includes events of Force Majeure but is not limited to the events set out above.
17.2 If Arboair is prevented or delayed in the performance of any of its obligations – under the Agreement – by any of the events in section 17.1 Arboair must as soon as practicable serve notice in writing to Customer, specifying the nature and extent of the circumstances giving rise to Force Majeure, and will subject to service of such notice have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and for such time after they cease as is necessary for Arboair, using reasonable endeavors to recommence its affected operations in order for it to perform its obligations as soon as possible and suitable, given the circumstances.
17.3 If Arboair is prevented from performing its obligations for a continuous period in excess of one month, either Arboair or Customer may terminate the Agreement, in which case Arboair will have no liability to Customer.
18 Term and termination
18.1 The Agreement enters into force when the Agreement has been concluded (for example when the Customer has accepted Arboair’s Quote, in accordance with what is stated therein) and will be valid for the Term stated in the Agreement.
18.2 If the Agreement is not terminated by either party by written notice to the other party one (1) month prior to the end of the Agreement Term, the Agreement will upon expiry of the then current Agreement Term be automatically renewed for an additional Agreement Term with corresponding notice periods as set out above.
18.3 In addition to what is otherwise set out in the Agreement, each party is entitled to terminate the Agreement with immediate effect where:
a) the other party has committed a material breach of the Agreement and does not fully rectify such breach within thirty (30) days of the other party giving written notice thereof; or
b) the other party is declared insolvent, is subject of an application or order for bankruptcy or company reorganization, suspends payments or otherwise can be presumed to be insolvent.
18.4 Upon termination of the Agreement (completely or partially) the Customer shall immediately cease its use of the Services. The license and all rights granted to the Customer hereunder will terminate; and all amounts due and payable to Arboair (if any) as a result of events prior to the date of expiration or termination will become due within thirty (30) days of the date.
18.5 Upon termination, the parties shall promptly return Confidential Information and other material submitted by the other party in accordance with the other party's instructions.
18.6 This section 18.6 and sections 4.3 (Arboair’s License to Customer Data), 8 (intellectual property rights), 9 (confidentiality), 13 (indemnification), 14 (limitation of liability) will remain in force after the termination of the Agreement.
19. Miscellaneous
19.1 Amendment: Only those amendments and additions to the Agreement that are made in writing and signed by the parties are valid.
19.2 Entire agreement: The Agreement represents the entire understanding and agreement between Arboair and Customer with respect to Services and supersedes all prior negotiations, understandings and agreements relating to Services – except written
20. Governing law and dispute resolution
20.1 The Agreement shall be governed by the substantive laws of Sweden.
20.2 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the SCC Arbitration Institute (the “SCC”).
20.3 The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount indispute 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 o one or three arbitrators.
20.4 The seat of arbitrations hall be Linköping, Sweden. The language to be used in the arbitral proceedings shall be Swedish, unless the parties otherwise agree in writing.
Definitions
Effective as of 2023-04-01