8.2 In addition, in order for the Customer to be able to use the Services, the Customer must also allow Planview to store and retrieve session information on the Customer’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorised persons do not gain access to the Services.
8.3 Customer shall when considered to be the Controller, in its use of the Services, process personal data in accordance with the requirements of Data Protection Laws and Regulations. Customer shall in such event has the sole responsibility for the accuracy, quality, and legality of personal data and the means by which Customer acquired personal data.
8.4 The Customer is aware of and acknowledges that Users must provide personal data in order to gain access to the Services. Customer shall use its best endeavors to ensure that such personal data is provided by the Users. If third party applications are made available by Planview within the Services, or if a User initiates or accepts to copy or export Content or personal data from the Services to a non Planview application, Customer acknowledges that Planview may allow such third party application provider access to Content and personal data as required for the interoperation of such embedded, linked or interacted applications.
8.5 If Planview is considered to be a Processor to Customer, Planview shall fulfil its obligations as a Processor in accordance with the Swedish Personal Data Act and, as from May 25, 2018 the GDPR, and will furthermore accept such assignment based on the instructions, terms and conditions in the DPA [www.projectplace.com/terms/dpa/] which hereby forms an integrated part of this Agreement.
8.6 Planview’s information gathering and dissemination practices are set forth in the Privacy Statement applicable from time to time, which is available on the Web Site.
8.7 The Customer accepts that Planview is not obliged to disclose information to Customer in respect of individual Users use of the Service.
8.8 The Customer agrees that Planview may disclose the fact that the Customer is a paying customer of Planview. In relation thereto, the Customer agrees that Planview may use the Customer’s name and logo to identify the Customer as a customer of Planview on the Web Site, and as part of a general list of Planview’s customers for use and reference in Planview’s promotional and marketing literature.
9 Security, Passwords, etc.
9.1 The Customer shall ensure that User identities, passwords, and equivalent obtained by the Customer in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Customer shall be liable for any unauthorised use of the Services. Planview shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
9.2 Where it is suspected that any unauthorised person has become aware of a user identity and/or password, the Customer shall immediately inform Planview thereof and also change such user identity and/or password.
9.3 The Customer shall be liable for losses or damage incurred by Planview where the Customer intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorised party, unless the Customer notifies Planview immediately upon suspicion that such has occurred.
9.4 Planview shall adopt reasonable measures to ensure that the security of the Services meet relevant industry standards. Planview’s security measures are set forth in the Security Policy as applicable from time to time, which is available on the Web Site.
10 Limited Warranty
10.1 Planview warrants to the Customer that the Services will perform substantially and materially in accordance with its documentation available on the Web Site, under normal use and circumstances, and for the purpose intended. This warrant does not apply to Trial Services.
10.2 Except for the express warranties set forth above and to the extent permitted by law, Planview expressly disclaims all other warranties with respect to the Services, whether express or implied, including without limitation, fitness for a particular purpose, accuracy or reliability of results from use of the Services, that the Services will meet specific requirements, that the Services will be uninterrupted, completely secure, free of software errors, or that defects and deficiencies in the Services will be corrected.
11 Limitation of Liability
11.1 Subject to the limitations set forth in this Agreement, each Party shall only be liable for direct damages.
11.2 In the event of major defects that seriously impede the Customer’s use of the Services and that are attributable to Planview, Planview undertakes to act to rectify such defect without unreasonable delay. In the absence of intent or gross negligence by Planview, Planview otherwise assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Customer in accordance with the instructions announced by Planview and within a reasonable time of the discovery of the defect.
11.3 The Customer shall not be entitled to a reduction in payment, or to damages or other sanctions in the event of operational disruption or errors that impede data traffic that are not due to negligence by Planview.
11.4 Planview shall defend and indemnify Customer from and against any damage, cost and expense (including reasonable attorneys' fees) finally awarded or agreed in a settlement by Planview as a result of any claim, suit or proceeding brought against Customer based on a claim that the authorized use of the Services furnished by Planview under this Agreement constitutes an infringement of any third party intellectual property right; provided that Planview has been notified promptly in writing of such claim, and given authority, information, and assistance to handle the claim or the defence of any suit, proceeding or settlement and that Customer has not compromised or settled the claim, suit or proceeding without Planview’s prior written consent, and provided further that Planview shall have no obligations under this section 11 to the extent any claim is based on the combination or use of the Services with other software, hardware or services not furnished by Planview or use of the Service in a manner prohibited under this Agreement, in a manner for which it was not designed where the Services would not otherwise itself be infringing.
11.5 In the event that the Services in such suit or proceeding are held to constitute an infringement, or if in Planview’s reasonable opinion the Services may constitute such infringement, and/or its further use is enjoined, Planview shall, at its own expense and at its option, either (i) procure for Customer the right to continue the use of the Services, or (ii) replace the Services with non-infringing services of materially equivalent function and performance, or (iii) modify the Services so that it becomes non-infringing without materially detracting from function or performance. Should none of these measures be technically, commercially or economically reasonable to Planview, then either party may terminate this Agreement. Upon such termination, Planview shall refund the amount of fees paid in advance in respect of not yet used Services.
11.6 Each party’s liability under this Agreement, including the DPA, shall, except for what is stated under Sections 4, 9.3, 11.4, 13, 17 or Customers liability as Controller under the DPA and GDPR, under all circumstances be limited to direct losses in an amount corresponding to the agreed fees paid by the Customer for the Services during the period of twelve (12) months immediately prior to the breach of contract that entitles a Party to damages. The foregoing shall not limit the Customer’s payment obligations under section 5 above.
11.7 Except as set forth in Section 11.6 above , under no circumstances shall a party be liable for indirect or consequential losses, including but not limited to loss of profits or anticipated savings, loss of revenue, loss of Content or any other data.
11.8 A party may claim sanctions in accordance with the above only where the party provides the other party with a written notice thereof not later than sixty (60) calendar days after the party knew, or should have been aware, of the grounds for the claim.
12 Force Majeure
12.1 A party shall be released from liability in damages and other sanctions where the performance of a specific obligation (other than for delay in the payment of amounts due and payable hereunder and the maintenance of confidentiality) is prevented or rendered onerous due to circumstances beyond a party’s control and which could not reasonably have been foreseen. Such force majeure events include, inter alia, labour conflicts, lightning, fire, decisions of public authorities or other public regulations, errors in another operator’s network, delays in services from subcontractors due to events as stated above, general scarcity of transport, goods, or energy, or other similar circumstances.
12.2 Where a party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either party shall be entitled to terminate the Agreement in writing without any obligation to pay compensation.
13 Confidentiality, etc.
13.1 Planview undertakes not to disclose to any third party, or otherwise make available, information received by Planview from the Customer or Users within the scope of the Agreement. Furthermore, any other information received by a party that in any way relates to the other party, including but not limited to any business, financial, scientific, intellectual property, customer or potential customer related, technical or operational information shall be considered confidential and shall not be disclosed to any third party. The above confidentiality obligations shall not apply to such information as a party can demonstrate became known to that party other than pursuant to this Agreement or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or court orders or otherwise agreed upon under this Agreement. The duty of confidentiality shall remain in force notwithstanding the termination of the Agreement.
13.2 Planview shall be entitled to review Content which is publicly posted through the Services’ web publication features. Planview also reserves the right to analyze usage patterns in an aggregated form.
13.3 Except for Content mentioned above and other than pursuant to the Customer’s instructions, legal provisions, public authority regulations or court orders, Planview shall not be entitled to review Content processed by the Customer via the Services.
14.1 Planview reserves the right to amend the terms and conditions of this Agreement, except for the DPA. The Customer shall be informed of such amendments by e-mail or through the information being made available on the Web Site. The Customer shall be deemed to have received such notice within two (2) weeks of the notice being sent by e-mail or made available on the Web Site. Where the Customer does not accept the amendment, the Customer shall be entitled, within thirty (30) calendar days from the date of dispatch of the e-mail or, where appropriate, thirty (30) calendar days from the amendment being published on the Web Site, provided that the changes have an adverse effect, that could not be considered as minor, on the Customer, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions.
15 Term of Agreement and Termination, etc.
15.1 This Agreement shall enter into force upon acceptance by the Customer of these terms and conditions through execution of this Agreement online during Subscription sign-up, or acceptance by the Customer of these terms and conditions in an Order Form, frame agreement, or in any other form.
15.2 The Initial Term is equal to the contract/billing term selected by the Customer during sign-up or, when applicable, agreed upon in the Order Form or in any other form. Even if a Basic, Professional, Team or Multi Edition Subscription has more than one billing term, the Initial Term shall still, when applicable, equal to the agreed contract term.
15.3 Upon expiration of the Initial Term, this Agreement will be automatically renewed with successive renewal terms at Planview’s then current terms and conditions. For Basic, Professional ,Team and Multi Edition Subscriptions, the Renewal Term is equal in duration to the forward looking billing term as selected online by the Customer or as stated in the Order Form, or when applicable the duration of the agreed contract term and with agreed billing terms. For other Subscription types, the Renewal Term is equal to the Initial Term or as otherwise stated in an Order Form or mutually agreed upon.
15.4 This Agreement can be terminated by either party subject to written or online notice of termination as stated below or in the Order Form, effective only at the end of the then current contract term and provided that all accrued and/or prepaid fees are paid in full. For Basic, Professional, Team and Multi Edition Subscriptions, such notice of termination must be given by the Customer, when applicable, in the online administration module at least one (1) day prior to the next contract term. For Enterprise Edition Subscriptions, if not otherwise agreed, notice of termination must be given in writing at least three (3) months prior to the end of the then current contract term.
15.5 Upon termination of a Subscription or the Agreement, Planview shall not be responsible for the Content generated by the Users/Customer within the scope of the Subscription in question or the Services. Accordingly, it is the sole obligation of the Customer to ensure that it possesses the necessary back-up copies, etc. of the Content that it desires to retain when the Subscription is terminated.
15.6 Upon the active termination of a Subscription by the Customer, Planview shall be entitled to immediately delete and destroy all Content within the scope of the Subscription. In the event of expiration of the subscription term of a Subscription and in the absence of the Customer’s renewal of the same, Planview shall be entitled to delete and destroy such Content thirty (30) calendar days following the expiration date.
15.7 Upon termination of a Subscription or this Agreement for any reason, Planview shall be entitled to and undertakes to permanently delete and destroy all copies of the Customer’s Content related thereto within a timeframe reasonable relating to the back-up and administrative procedures applied by Planview from time to time.
15.8 Sections 11 and 13 shall survive any termination of this Agreement.
16 Access Restrictions, Early Termination
16.1 Planview shall be entitled, with immediate effect, to disable the Customer’s or a User’s access to a project or to the Services or to terminate the Agreement at any time in writing where: (a) the Customer or a User uses the Services in a manner that entails the perpetration of a crime; (b) the Customer or a User uses the Services in a manner that occasions losses or the risk of loss for Planview or any third party; (c) the Customer or a User uses the Services in a manner that violates Planview’s security or administrative regulations; (d) it may be reasonably assumed that continued dissemination of Content violates governing law; (e) notwithstanding reminders, the Customer fails to pay agreed fees to Planview within a stated time; (f) the Customer or a User uses the Services in a manner whereby the Customer utilises resources or seeks unauthorised access to Planview’s systems which are not intended for the Customer; (g) the Customer otherwise fails to comply with the Agreement and such breach of contract is material; (h) the Customer or a User does not comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services or (i) the Customer is placed into insolvent liquidation or is otherwise insolvent.
16.2 The Customer shall be entitled to terminate the Agreement at any time in writing where: (a) operational disruptions or data traffic errors occur to such an extent that the Customer does not have access to the Services during a period in excess of one (1) month; (b) Planview is in material breach of its obligations under the Agreement and fails to effect rectification within fourteen (14) days of a demand therefore; or (c) Planview is placed into insolvent liquidation or is otherwise insolvent.
17.1 Planview shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement to a company within the same de jure or de facto group of companies as Planview or to a purchaser of all or substantially all of its stock or assets without the Customer’s prior consent
17.2 Save for the provisions of section 2.5, the Customer shall not be entitled to assign its rights or obligations under this Agreement without Planview’s prior written consent.
18 General Provisions
18.1 This Agreement has been prepared in the English language and the same shall be controlling in all respects. Any non-English versions of this Agreement are provided solely for accommodation purposes.
18.2 If any provision of this Agreement is declared unenforceable for any reason, the remainder of this Agreement will continue in full force and effect, and the unenforceable provision shall be amended to the extent possible and permitted by law to achieve as nearly as possible the same intent and economic effect as the original provision.
19 Governing Law, Export Control and Disputes
19.1 This Agreement and the ensuing relationship between Planview and the Customer shall be construed in accordance with, and governed by, the laws of Sweden. The United Nations Convention on the International Sale of Goods shall have no application to this Agreement
19.2 The Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services. Without limiting the foregoing, (i) the Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction (iii) and that the Service may not be exported or re-exported into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, North Korea, Sudan, and Syria).
19.3 In the event of any dispute relating to this Agreement, the parties agree to initially make a full and good faith attempt to resolve such dispute by negotiation at an executive level, to the extent reasonable under the circumstances, prior to commencing court or arbitration proceedings.
19.4 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 at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Institute).
Where the amount in dispute does not exceed EUR 100,000 the SCC Institute's Rules for Expedited Arbitrations shall apply. Where the amount in dispute exceeds EUR 100,000 the Rules of the SCC Institute shall apply. Where the amount in dispute exceeds EUR 100,000 but not EUR 1,000,000, the Arbitral Tribunal shall be composed of a sole arbitrator. Where the amount in dispute exceeds EUR 1,000,000 the Arbitral Tribunal shall be composed of three arbitrators.
The amount in dispute includes the Claimant's claims in the Request for Arbitration and any counterclaims in the Respondent's reply to the Request for Arbitration.
Planview may however bring disputes regarding overdue unpaid claims for the Services before Swedish ordinary courts, in the first instance the District Court of Stockholm (Stockholms Tingsrätt).
Version 9.0, April 2018