Mercell Terms and Conditions for Services

Mercell Terms and Conditions for Services

1. Parties to the Subscription Agreement 

 

Unless specifically addressed in a separate signed agreement with the customer/user, these Terms and Conditions, the Order Confirmation, and any supplemental terms that may be applicable (the “Subscription Agreement”), apply to the use of Mercell´s Services (including guest and trial accounts). This document constitutes a contract between the legal entity or sole proprietorship (including all licensed users) specified in the Order Confirmation or account registration (the “Customer”) and the Mercell company providing the Services specified in the Order Confirmation or account registration (“Mercell”).

For the purpose of these Terms and Conditions, the term "Mercell company” shall be understood as the legal entity that is part of the Mercell Group that has a relation with the customer; this information is stated  to the customer in the order confirmation.

2. Acceptance of terms under the Subscription Agreement

 

By ordering, registering for, and/or using the Services, the Customer and the user confirm that it/he/she  on own behalf and/or on behalf of the Customer legal entity it/he/she represents has read, understood, and accepted to be bound by these Terms and Conditions and any supplemental terms applicable, such as Mercell Corporate responsibility principles, the terms of use, privacy policy, and the Data Processing Agreement, all of them forms a part of the Subscription Agreement when Mercell will be processing personal data on behalf of the Customer and is considered as accepted and approved by the Customer when Services have been ordered, registered for and/or taken into use by the Customer or its users. The same applies to Customers and users who have registered for a guest account or a trial account, to which the Subscription Agreement also applies, as appropriate.

Any user ordering, registering, accessing, and/or using the Services and/or entering into the Subscription Agreement on behalf of a Customer warrants and represents that he/she has the authority to do so. If the user does not have such authority or does not agree to the terms in the Subscription Agreement, neither the user nor the Customer may use the Services. The description of the service provided by Mercell will be stated in the order confirmation issued by Mercell to the user.

“Mercell” shall also be understood as a reference to affiliates, subcontractors, and other third parties that Mercell may engage from time to time or otherwise cooperate with in connection with the Services.

3. General usage statements

 

By entering into the Subscription Agreement with Mercell, the Customer has ordered and/or registered for licensed access to Mercell´s information services and tools for the public procurement domain either as a payable subscription, a trial subscription or a guest subscription as specified in the Order Confirmation or account registration.

A guest account provides the Customer and users with limited access to information and features in the Services. A trial account provides the Customer and users with temporary use of the Services for a limited time period, as stated by Mercell. There may be limitations on how many times a Customer and/or user can subscribe for a trial account.

Provided that the Customer and its users comply with all the terms in the Subscription Agreement, Mercell gives the Customer a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable, and revocable license to use the Services confirmed in the Order Confirmation or account registration to use the Services in accordance with the Services subscribed to for the sole purpose of its own internal use.

A license to use the Services also includes a limited, non-exclusive, non-assignable, non-sublicensable, non-transferable, and revocable license to use the output of any Artificial Intelligence (AI) services or features included in the Services. The use of the Artificial Intelligence (AI) services or features is subject to the Customer’s compliance with any and all applicable laws. The Customer understands and acknowledges that the Artificial Intelligence (AI) services or features are not mandatory or integrated by default and that the Services may be used without enabling the Artificial Intelligence (AI) services or features. The Customer is responsible to assess the suitability and compliance in the use of such a feature. Mercell reserves the right to charge fees for the use of the Artificial Intelligence (AI) services or features, at any time, upon providing prior notice.

Any misuse of the Services, including crawling, automated downloading of information, and similar activities from the Services and websites, is strictly forbidden and would be understood as a violation of the agreement therefore, Mercell reserves the right to unilaterally terminate the agreement in case the customer, users or associated accounts misuses the service.

The Customer and/or any user, authorized or not, may under no circumstances themselves or allow for any third party to access, tamper with or use non-public areas of the Services and/or Mercell´s systems, including systems of Mercell´s subcontractors used to provide the Services, test the vulnerability of any system or network or breach or circumvent any security or authentication measures, disrupt or interfere with (including attempts) the access of any user, host or network.

The Customer is fully and solely responsible for any use of the Services by the Customer´s users, including all activities occurring under such user accounts and the lawfulness of such activity, whether or not actually or expressly authorized by the Customer. Further, the Customer agrees to indemnify Mercell and its subcontractors from all claims, liabilities, and expenses (including reasonable attorney's fees) that arise from the Customer's or the Customer´s users misuse of the services in breach of the Subscription Agreement or applicable laws The Customer must immediately report to Mercell, and use reasonable efforts to immediately stop, any use of the Services in violation of the Subscription Agreement that the Customer suspects or becomes aware of.

4. General license statements

 

Unless otherwise specified in the order confirmation with a different number of users licenses, the licenses are individual, and consequently, there is a 1 to 1 relationship between the license and each of the Customer´s users. This implies that one license can only be used by one person/user or by the number agreed on the order confirmation. Any type of license sharing is prohibited and will entail a material breach of contract by the Customer.

In the event the user’s employment with the Customer is terminated, the Customer shall disable or remove the user.

5. User registration and data input:

 

The license granted to the Customer entails the possibility for Customer employees to register as a user in the Services, as confirmed by Mercell. When registering a user, the Customer is responsible for and undertakes to ensure that personal user IDs and passwords are treated as confidential information in order to prevent access by unauthorized parties. Personal user access cannot be transferred to any other party or person without the prior consent of Mercell.

The Customer is responsible for and must ensure that users enter the correct information, including Customer company name, personal name, address, telephone number, and any other required information in the Services system, and that such information is kept up to date. The Customer and/or the user is not allowed to select or use the identity of another person with the intent to impersonate that person. Mercell reserves the right to verify the email address used at any time. User accounts containing incorrect information will be closed without warning.  Mercell will not be liable for any loss or damage arising from the failure to comply with the above requirements.

The Customer is liable for checking that invoicing information, log-in details, registration details, or other information required by the n Services are correct. Furthermore, the Customer is responsible for ensuring that all information that the Customer or the Customer's users save, use, or otherwise, process within the context of any of the Services conforms to applicable legislation.

All information provided by the Customer will be used exclusively by Mercell. The information will also not be sold or passed on to third parties. Mercell reserves the right to disclose information about registered Customers and users to public authorities such as the police or other authorities when required.

6. Subscription duration and notice of termination:

 

Unless otherwise specified in the order confirmation, the duration period for a payable subscription will run for one (1) year, starting from the date the order is confirmed, unless otherwise is stated in the Order Confirmation. The subscription will then be renewed automatically with one (1) year at a time. Any potential cancellation or reduction of the purchased Services by the Customer or Mercell, shall be made in writing, no later than ninety (90) days before the expiration of the subscription period.

In the event of a termination notice, no refunds will be paid for the remaining subscription period in case such exists.

The duration period for a trial account subscription is according to the account registration information unless otherwise agreed.

If the Customer cancels a user license for any of the Services (apart from a guest account or a trial account license), Mercell will downgrade the canceled license to a guest account license after the term of the payable subscription has expired, which means that the Customer's users receive a limited guest account.

The same applies to Customers who, free of charge, have tested the Services, where the user license, after the trial period, is downgraded to a guest account license.

The Customer can always choose to give notice of termination of a guest account subscription in writing with immediate effect. In that case, Mercell will cancel the Customer's guest account subscription as soon as possible and no later than sixty (60) days after the notice of termination and will thereby terminate access to the Services by the guest account user specified by the Customer in the notice of termination. A guest account subscription otherwise applies for as long as the Customer's user is active. However, a guest account subscription is terminated automatically by Mercell, without prior notice to the Customer, if the Customer's guest account user has been inactive (not logged in) in the guest account for a continuous period of over three (3) years.

7. Premature termination of the Subscription Agreement 

 

If the Customer is in breach of any of the conditions in the Subscription Agreement, Mercell is entitled to give notice of termination of the Subscription Agreement with immediate effect and discontinue the access to the Services without incurring liability of any kind.

Furthermore, Mercell is entitled to give notice of termination of the Subscription Agreement with immediate effect and without incurring liability of any kind if the Customer is declared bankrupt, a trustee is appointed for the Customer or a procedure for a composition with the Customer's creditors, or similar is initiated, or if the Customer can otherwise be considered to be insolvent.

In the event of a termination notice, no refunds will be paid for the remaining subscription period in case such exists.

Mercell reserves the right to terminate the Subscription Agreement with immediate effect for convenience without cause and without incurring liability of any kind. Mercell will use reasonable efforts to provide the Customer and/or user a prior written notice if possible, and Customers and/or users may, in such cases, be entitled to refunds for any prepaid amounts corresponding to the remaining subscription period in case such exist.

8. Availability of the Services and Customer Service:

 

The Services are normally available around the clock. However, Mercell is providing the services "as is," and the Customer and its users acknowledge that the Services are not error-free and will not always operate uninterrupted. Mercell makes no warranties, neither expressed, statutory, or implied, with respect to the availability or capacity of the Services.

Mercell reserves the right to close down the Services from time to time for ordinary maintenance or updates. Nevertheless, Mercell will strive to execute maintenance in a manner that reduces the unavailability of the Services and the daily impact for the Customer as much as possible given the circumstances.

9. Prices and price adjustments

Unless otherwise agreed in writing, prices are in accordance with the Order Confirmation or the current Mercell’s product and price list. Mercell reserves the right to change prices at any time, but for existing subscriptions, price changes will only be applicable for the next subscription period starting at the time the subscription is renewed, as described in section 6.

All prices exclude tax and other general charges regulated by the tax authorities or other authorities in the country where the Services are delivered.

10. Invoicing and payment terms

 

Excluding guest accounts, free accounts, and trial accounts, payment from the Customer  must be made in advance for a full subscription period in accordance with the invoice issued from Mercell. Invoicing takes place within ten (10) days after the issuance of an Order Confirmation  unless otherwise is agreed in the Order Confirmation or unless there are local requirements conflicting with the ten (10) calendar days invoicing period in the country, the invoice is issued. An administration fee will be charged in addition to the applicable product price. The Customer is obliged to pay within thirty (30) calendar days after the invoice date unless otherwise agreed in the Order Confirmation or unless there are local requirements conflicting with the thirty (30) calendar days payment period in the country, the invoice is issued.

All payments from the Customer must be made in the applicable local currency of where the Services are delivered unless otherwise is specified by Mercell.

If the invoice or attachment to the invoice contains incomplete or insufficient information that is relevant for the service or payment to which the invoice applies, the Customer is responsible for advising Mercell within a reasonable time. In such cases, Mercell will ensure that the incomplete or inaccurate information is corrected.

In the event of late payment, interest on overdue payment will be charged by Mercell on any outstanding amounts in accordance with the legislation of the country in which Mercell issued the invoice. In the event of failure to perform payment, Mercell is entitled to deny the Customer and all Customer users access to the Services.

 

11. Limitation of Liability

The information provided in the Services (including Mercell´s websites) is collected from public and private sources and Mercell has not verified the accuracy or completeness of such information collected or re-distributed to the Customer. The Services does not come with any warranty, neither statutory, expressed, or implied with respect to the merchantability, fitness for a particular purpose, non-infringement, design, condition, accuracy, completeness, performance, relevance, availability, missing information or quality. Mercell does not verify or guarantee the accuracy or completeness of any output generated or marked as generated by internal or third party Artificial Intelligence (AI). Neither shall any advice or information, whether oral or written, obtained from Mercell or elsewhere create any warranty. To the maximum extent permitted by applicable law, Mercell expressly disclaims, and the Customer hereby expressly waives, all warranties implied at law, from custom, course of dealing, or usage in trade. The Customer uses the Services and the information therein at the Customer's own risk and discretion.

Hence, under no circumstances, and to the fullest extent permitted by law, shall Mercell be liable for any losses of any kind, whether direct or indirect, regardless of any kind of negligence, whether strict or not, in connection with the use or inability to use the Services, including that which may arise from setup errors, user errors, system errors, missing or incomplete distribution of information in the Services, inaccuracies or incompleteness in output generated or marked as generated by Artificial Intelligence (AI), inaccurate information or information providers or other types of errors, incompletenesses, inconsistencies or misinformation in published requests or otherwise. This includes but is not limited to, loss of business, profits, revenues goodwill, business opportunities, anticipated savings or loss of data or similar incurred by the Customer or the Customer´s users.

Nevertheless, Mercell will, as far as possible, correct any missing, incomplete, inaccurate information or errors as soon as Mercell becomes aware of it.

The Services or Mercell´s websites may contain links to other third-party websites and platforms. Mercell has no liability whatsoever for the availability of such websites or platforms, for their contents, for their security, or for how they process personal data.

In any event, Mercell’s total and cumulative liability shall under no circumstances exceed the value of one (1) year for the Subscription Agreement with the Customer to which a loss relates.

 

12. Confidentiality

 

The Customer undertakes to maintain a mutual duty of confidentiality and shall hold in confidence, not disclose, and prevent third parties from gaining access to or knowledge of any technical, commercial and financial information pertaining to the  Services as well as data and functions provided by the Services. The Customer also undertakes to ensure that confidential information is not used for any purpose other than fulfilling the obligations and exercising the rights under the Subscription Agreement.

The Customer may disclose confidential information to its employees and subcontractors on a need-to-know basis, provided that such are bound by confidentiality obligations no less protective than this section 12.

The Customer remains responsible for its employees´ and subcontractors´ compliance with the terms under the Subscription Agreement. The Customer may make disclosures to the extent required by law or a court order, provided that (unless prohibited by law) the Customer notifies Mercell in advance and cooperates in any effort to obtain the continued confidentiality of such information.

The Customer acknowledges that any breach of confidentiality or proprietary rights provision of the Subscription Agreement, may cause Mercell irreparable damage, for which the award of damages would not be adequate compensation. Hence, in the event of any such breach or threatened breach, Mercell shall have the right to an injunction or specific performance in addition to any other legal rights or remedies which may be available, and Mercell is entitled to claim the costs and expenses, including, without limitation, reasonable attorneys' fees and court costs incurred while enforcing such rights.

13. Intellectual property rights

 

With the exception of public information available in the public domain, Mercell and Mercell ́s subcontractors holds all any and all rights of title to, benefits, interests and ownership to all intellectual property rights, whether registerable or not, including but not limited to, copyright, trademarks, design, patent rights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction worldwide, improvements, enhancements, derivative works and modifications thereof, to any and all information received or provided via theServices. All available information must not in any form be distributed or sold on to third parties.

Except for the limited, non-exclusive, non-transferable, non-assignable and revocable license granted to the Customer for the sole purpose of the Customer´s internal use of the Services in compliance with the Subscription Agreement, the Customer is not granted, expressly or implied, any ownership of or license to any intellectual property rights in the Services or in the content owned by Mercell or Mercell´s subcontractors. The Customer shall under no circumstances make available, transfer, sub-license or assign the rights under the license to any other entity or individual, or modify, copy, adapt or create derivative works of the Services, or reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive or obtain the source code or algorithm or the like contained in the Services, make the functionality or the information of the Services available to third parties or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Services.

14.  Processing of personal data

 

It is important to Mercell to meet the requirements for compliance with the at any given time applicable privacy legislation.

When Mercell is delivering the Services to the Customer, Mercell will process personal data about the Customer and the Customer´s users. When and how Mercell will process such personal data and which role Mercell holds in this regard is described in our Privacy Statement. When Mercell holds the role of a data processor and the Customer will hold the role as the data controller, the terms of the Data Processing Agreement will apply.

The Data Processing Agreement, which forms an integral part of the agreement, is attached to the end of these General Terms and Conditions as appendix 2.

 

15. Force majeure

 

If a party is prevented from fulfilling its obligations under the Subscription Agreement due to circumstances to which the party has no reasonable control over and which is regarded as force majeure, the affected party's obligations are suspended as long as the force majeure situation persists, except for the payment of any amount owed to the other party. The other party’s obligations shall also be suspended for the same period of time. Force majeure means circumstances beyond the reasonable control of either party, including, without limitation, fire, explosion, natural disasters, blockades, embargos, war and other military conflicts, terrorist attack, strikes, labor disputes, riots or other civil disturbances, voluntary or involuntary compliance with any law, regulation or order, recommendation or request of any governmental authority, and errors or downtime in networks, power supply or similar failures of communication. The same shall apply if Mercell depends on the service of a third party and this service is delayed as a result of force majeure.

In force majeure situations, the other party may only rescind the Subscription Agreement without any liability with the consent of the affected party or if the situation persists or is expected to persist longer than ninety (90) calendar days calculated from the time the situation arises, and with a fifteen (15) calendar days' prior notice. However, the Customer is still obligated to pay for Services already provided.

In connection with force majeure situations, the parties have a mutual obligation to inform each other of all matters deemed to be of importance for the other party. Such information shall be notified as soon as possible.

 

16.  Changes and amendment of conditions:

Mercell reserves the right to change the design and operations of the services at any point in time. Furthermore, Mercell is entitled to unilaterally  change the terms and conditions for the Subscription Agreement, including these Terms and Conditions, the Data Processing Agreement, the privacy policy, the terms of use, and the technical and administrative procedures that apply.

Significant changes in terms and conditions will apply no later than thirty (30) calendar days after notice has been given to the Customer and/or the Customer's users in the manner that Mercell deems appropriate. Mercell reserves the right to determine what is deemed as significant change(s).

If the Customer does not accept the terms and conditions as changed by Mercell, the Customer is entitled, within thirty (30) calendar days from when the Customer was informed of the changed terms and conditions, to give Mercell a notice in writing of termination of the Services. Any prepaid fees will be refunded in the event that the Customer makes use of the right to give notice of termination in accordance with section 16.  The refund fee will be proportional to the remaining license time the user has at the moment of notifying the termination.

If the Customer has not made use of this ability to give notice of termination of the Services, the Customer is considered to have accepted the changed terms and conditions.

 

17. Re-assignments of subscription agreements:

The Customer has no right to assign or transfer in any way, in whole or in part, any of the rights or obligations under the Subscription Agreement to any other party without Mercell’s prior written approval. This includes transfers due to corporate reorganization, mergers, and the like. Such approval requires that the new party enters into a subscription agreement on the same terms or on terms changed by Mercell that are adapted to the new party. Nor has the Customer any right to transfer or disclose usernames and passwords to another party or any of their licenses. Mercell is entitled, in whole or in part, to assign its rights and obligations under the Subscription Agreement to a third party at its own discretion.

18. Compliance with external requirements:

The Customer is fully and solely responsible for ensuring that the Customer and the Customer´s users´ use of the Services are in compliance with the at all times applicable legislation.

To use Mercell´s services, the Customer must comply with all applicable legislation on corruption, anti-bribery and export/import controls.

19. Survival of terms

All provisions of the Subscription Agreement that, due to their nature, survive expiration or termination shall continue to apply in full effect. This includes but is not limited to sections 3, 11, 12, 13, 21 and 22.

20. Interpretation and precedence 

 

The Subscription Agreement, as amended by Mercell from time to time, constitutes the entire contract between Mercell and the Customer with regards to the Customer's and the Customer ́s users´ use of the Services. Any conflicting or additional terms contained in any order from the Customer or the like, are explicitly excluded. If the contractual documents of the Subscription Agreement contain any contradictory information, they apply, unless the circumstances clearly indicate otherwise, in the following order: 1. Order Confirmation, 2. Invoice, 3. Mercell Corporate sustainability principles, 4. Data Processing Agreement, 5. Terms and Conditions, 6. Any supplemental terms deemed by Mercell to be applicable.

Headings used are for reference only and do not constitute a part of the Subscription Agreement and will not be deemed to limit, characterize or in any way affect the interpretation of any provision. If any provision of the Subscription Agreement is declared invalid or unenforceable by a court or another binding authority, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law.

 

21. Miscellaneous

Nothing contained in or performed pursuant to the Subscription Agreement shall constitute that either party is the agent or employee of the other party for any purpose or constitute that the parties as partners or joint venturers. Except as expressly permitted under the Subscription Agreement, neither party may act on behalf of or bind the other party.

The rights and obligations under the Subscription Agreement are intended for the sole exclusive benefit of and may only be enforced by the Customer and Mercell, except for what is otherwise explicitly stated in the Subscription Agreement.

Under no circumstances shall any delay, failure, or omission of Mercell in enforcing, exercising, or pursuing any right, claim, or remedy under the Subscription Agreement shall be deemed as a waiver thereof unless such right, claim, or remedy has been expressly waived by Mercell in writing. The waiver of a right, claim, or remedy under the Subscription Agreement shall not constitute a waiver of any other or subsequent rights, claim, or remedy.

 

22. Right to commercial reference:

Customer authorizes Mercell  to cite and use as appropriate reproduction of their trademark or logo as a commercial reference, especially at events, in its business documents, and on its Internet site, in any form whatsoever.

23. Governing Law and disputes:

Any controversy, dispute, or claim concerning the interpretation or applicability of the Subscription Agreement shall be settled by the ordinary court proceedings in the country and city where Mercell's office has entered into the Order Confirmation and Subscription Agreement and according to such country's legal system, legislation and interpretation, without giving effect to the choice of law principles thereof. The Subscription Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.

Appendix 1: Mercell Corporate sustainability principles

Appendix 2: Data processing agreement

Appendix 3: Privacy policy

Appendix 4: Terms of use

Appendix 5: Additional Terms and Conditions Regarding Third-Party Services