General Terms

1.Definitions

1.1. “Company” means Cerve Global Ltd, a British company with its registered address at 6th Floor One London Wall, London, United Kingdom, EC2Y 5EB; registered company number 15947597.

1.2. “Customer” means any legal entity or natural person with whom an agreement regarding Customer’s use of Company’s cloud platform Cerve has been made or quotation has been submitted by the Company.

1.3. “Party” means the Company or the Customer.

1.4. “Terms” means these General Terms & Conditions for Cerve.

1.5. “Agreement” means the individual agreement between the Customer and the Company regarding the Customer’s use of the Service, as well as any changes thereof. These Terms shall constitute an integral part of any such Agreement.

1.6. “Buyer” means a legal entity or natural person who has signed up to Cerve for the purpose of purchasing products from a Customer.

1.7. “Service” or “Cerve” means the Company’s cloud-based web platform and/or mobile device application called Cerve, which facilitates, simplifies and unifies online purchasing between wholesalers, suppliers and other food distributors and their buyers, which subject to the terms of the Agreement, may further include data synchronization and data structure integration with Customers’ ERP systems. The Service comprises i.a. of an administration panel and Store and is described in the Service Description.

1.8. “Store” means the designated web-based online store where Customer products are offered to connected Buyers.

1.9. “Buyer’s Account” means accounts for Buyers of the Customer and through which Buyers’ place orders to the Customer.

1.10. “Intellectual Property and Intellectual Assets” means all intellectual property and intellectual property rights, such as trademarks, designs, patents, utility models, copyrights, databases and all intellectual assets, know-how, trade secrets, data, scripts and algorithms.

1.11. “Buyer Terms of Use” means the terms of use that govern a Buyer´s use of the Buyer Account and which is entered into by the Company and the Buyer. The Buyer Terms of Use may be accessed on the Company’s website.

1.12. “Third-Party Software” means a third-party software that is used to import, integrate, retrieve, transfer and organize data.

1.13. “Content” means the content developed and organized by the Company and the Service for publication and presentation in the Customer’s Store based on the Customer’s Data, such as product names and general product information.

1.14. “Access Point” means the point or points at which the Company connects the Service to a public electronic communications network, which may include, as applicable, Company’s Application Programming Interface (API) and/or Company’s mobile applications.

1.15. “Digital Distribution Stores” means shall mean the Google Play developed by Google LLC and App store developed by Apple, Inc.

1.16. “Agreed Start Date” shall have the meaning set out in the Agreement.

1.17. “Service Description” means the description of the contents and functionality of the Service contained in the Agreement.

1.18. “Customer Data” means any data submitted or transmitted to the Service by the Customer in connection with its use of the Service.

1.19. “Derivative Data” means data that have been created by the Service based on Customer Data or that have been derived from Customer Data by the Service.

1.20. “Shortcoming” means an error resulting from a deviation from the agreed specifications or other express requirements set forth in the Agreement and which causes a material incorrect or inadequate functioning or non-functioning of the Service.

1.21. “Fee” means the aggregate amount to be paid by the Customer to the Company for the right to access and use the Service.

1.22. “Privacy Policy” means the Company’s privacy policy, currently posted at https://cerve.com/privacy-policy

1.23. “User” means any individual who uses the Service on the Customer’s behalf or through the Customer’s account, whether authorized or not.

1.24. “Software” means the software provided to the Customer as a software-as-a-service via the internet by or on behalf of Company in connection with the Customer’s use of the Service.

2. Applicability

2.1. The Terms apply to all requests, quotations, purchase orders, order confirmations or Agreements concluded between the Company and the Customer regarding the Service.

2.2. These Terms constitute an Appendix to the Agreement entered into by the Parties. In case of conflict between provisions included in these Terms and an Agreement, and provided that the circumstances surrounding the provision of the Service do not apparently give rise to another interpretation, the parts of the Agreement prepared by the Parties shall take precedence over these Terms.

2.3. These Terms replace any previous agreements and negotiations between the Parties regarding the provision of the Service.

3. Provision of the Service

3.1. From the Agreed Start Date and during the term of the Agreement, Company undertakes to provide access to the Service at the Access Point in accordance with the terms and conditions of the Agreement. For the sake of clarity, the Agreement may set forth that Company shall provide services for the implementation of the Services, provided that the date upon which the Services are implemented shall not change or affect the Agreed Start Date.

3.2. The Company shall use reasonable efforts consistent with prevailing industry standards to provide the Service in a professional and workmanlike manner.

3.3. Unless otherwise follows from the Agreement and subject to Company’s Privacy Policy, Company has the right to provide the Service, in whole or in part, from another country, if Company fulfills the terms and conditions of the Agreement.

3.4. Company may engage subcontractors to perform the Service and other obligations under the Agreement. In such case, Company is responsible for a subcontractor’s work as if it had been performed by Company itself.

3.5. The Software may include features or functionality, for which Company may charge additional Fees, that interoperate with online services, software, content, data or other materials operated by third parties (“Third Party Software”), subject to provisions under applicable agreements, terms and conditions, privacy policies or any other binding terms with operators or other third parties related to the provision of Third Party Software (such agreements, “Third Party Agreements” and such operators and other third parties, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time and Company may at any time, for any reason, modify or discontinue the interoperability to any Third Party Software. Any such modification, suspension or termination shall not affect any payment obligations under the Agreement and Company shall have no liability with respect thereto. Without limiting the foregoing, Customer’s use of the Third Party Software shall be subject to the Third Party Agreement and shall further be responsible for ensuring that Customer’s use of the Software in connection with Third Party Software complies with all policies, terms and rules applicable thereto. In addition, the Customer may be requested to pay additional duties, taxes, or other fees not otherwise covered by the Third Party Software, in accordance with the Third Party Agreements and Company shall have no liability with respect thereto. Company does not control, endorse, or accept responsibility for any such third-party content, software or services, and any dealings between Customer and any third party in connection with such content or services, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Customer and such third party. Company may at any time, for any reason, modify or discontinue the availability of any third-party content, software or services.

4. The Customer’s responsibilities

4.1. To the extent that the Agreement provides that the Services will include integration with Customer’s systems, it is clarified that the Customer is responsible for its own systems (such as ERP, CRM and other systems) as well as the communication between the Customer and the Access Point. The Customer is also responsible for third party programs such as web browsers, pdf readers, toolbars, anti-virus and firewalls being correctly installed and that they allow traffic to web sites designated by Company.

4.2. The Customer is responsible for assuring and maintaining the accuracy of all of the Customer’s Data in the Service, such as information on products and inventory, product names, pictures, sales prices, Buyers, orders status, line items and shipping information. Without derogating from the foregoing, the Customer represents and warrants that it has all legal right, including intellectual property rights, in the Customer’s Data and the Content to enable the display of such Customer’s Data and Content in the framework of the Services, provided however that only if at the request of the Customer the Company took upon itself in writing to purchase certain Content on behalf of the Customer, then the Company shall be responsible for obtaining such rights and third-party approvals and the Customer shall accept and comply with any third-party terms relating to the use of such Content.

4.3. The Customer accepts and understands that the implementation, use of and access to the Service and its facilitation requires that the Customer contributes to the implementation process, for example by contributing to the development of Content for the Customer’s Store by the means of synchronization with Third Party Software and similar, and that the Company receives satisfactory connection to Third Party Software and that the relevant information is correct and complete. The Customer shall assure that the Company receives sufficient technical support and information including but not limited to i) communication, availability and support from the Customer and the Customer’s IT provider; and ii) credentials and similar requirements to the relevant Third-Party Software provider(s). The Company is not responsible for any failure in connection between the Service on one hand and Third-Party Software and/or communication networks or servers on the other hand caused by a circumstance outside of Company’s control, such as a technical or organizational failure on the part of Third-Party Software provider.

4.4. To the extent applicable, the Customer is obligated to follow the general terms and conditions of the Digital Distribution Stores when accessing and using the Service.

4.5. The Customer accepts and agrees that the Company is not a contracting party to any of the orders made though the Service and shall be considered a third-party supplier in the legal relationship between the Customer and the Buyer.
4.6. The Customer shall take reasonable steps to prevent unauthorized access to the Service, including by protecting its passwords and other log-in information. The Customer shall notify the Company immediately of any known or suspected unauthorized or unlawful use of the Service.

4.7. The Customer shall ensure that all Users are informed of the terms and conditions that apply when using the Service under the Agreement.

4.8. The Customer and Users shall not: (i) use Content outside of the Service without the Company’s written consent; (ii) access the Service in order to build a competitive product or service, to build a product or service using similar ideas, features, functions, source code or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; (iii) share non-public Service features or content with any third party; (iv) disassemble, decompile, reverse engineer or otherwise try to discover the source code of the Software, or to create derivative works, compilations, or collective works thereof;; (v) remove or alter any copyright or other proprietary notice or legends appearing in the Service or Software; or; (vi) permit, allow or enable any third party to do any of the foregoing.

5. Implementation of the Service

5.1. To the extent so provided in the Agreement, the Company shall provide implementation and/or other professional services as set forth herein and in the Agreement (the “Professional Services”).

5.2. The Company shall, in good time, have provided the instructions that are necessary for the Customer to start using the Service from the Agreed Start Date.

5.3. In the Agreement, the Parties may specify the respective obligations of the Company and the Customer in respect of the Professional Services, as well as any additional services and deliverables to be provided by Company, such as customizations of the Service and integrations (the “Deliverables”). To the extent so provided by the Company, the Deliverables shall be deemed part of the Software, and any and all provisions which apply to the Software, including Section 6 below, shall apply mutatis mutandis to the Deliverables.

6. Ownership and right to use

6.1. Ownership to the Service: Company retains all right, title, and interest in and to the Service and the Software, including, without limitation, all Content and all software used to provide the Service and all improvements, enhancements or modifications to the Service or Software. The Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components other than a limited right to use the Service in accordance herewith.

6.2. Right to use the Service: During the term of the Agreement, the Customer may access and use the Service pursuant to the terms of the Agreement and these Terms. The right to use the Service is non-exclusive and limited to the Customer’s own business. The Customer may allow its contractors to access and use the Service on behalf of the Customer and is responsible for its User’s and contractor’s use of the Service and compliance with the Agreement. Neither the Customer, nor any individual acting under instructions from the Customer, is allowed to remove or alter any copyright, designs or other appearances in the Service.

6.3. Company’s Trademarks: During the term of the Agreement the Customer may use the Company’s relevant trademark in order to market and demonstrate its use of the Service. The Company may, however, prohibit the Customer from using the Company’s trademarks at any time.

6.4. Customer’s Trademarks: During the term of the Agreement the Company has the right to use the Customer’s name, trademarks and logotypes in the Service and any materials, presentations or media advertising or promoting Customer as a Service customer. If the Agreement is terminated, the Company may still refer to the Customer as a previous customer.

6.5. Customer Data: In the relationship between the Customer and the Company, the Customer is the holder of all rights pertaining to Customer’s Data.

6.6. Company’s use of Customer Data: The Company has the right to collect, and process retrieved Customer Data from the Service for (i) providing, maintaining, securing, supporting, improving, modifying, and developing the Service and Software; (ii) compiling aggregated statistics and reports for internal business purposes and/or marketing use; (iii) clarifying misuse or analyzing infringements, and (iv) developing and marketing new products and services.

6.7. Derivative Data: Company is the holder of all right, title and interest in and to any Derivative Data.

6.8. Feedback: Any ideas or suggestions for improving or otherwise modifying the Service and/or any other feedback that the Customer or Users provide to the Company (“Feedback”) may be freely used, exploited and profited from by the Company for any purpose and in any manner without compensation to the Customer or User. The Customer hereby assigns to Company all right, title and interest to Feedback provided to Company.

7. Payment

7.1. For the use of the Service, the Customer shall pay to the Company the Fee set forth in the Agreement. All amounts due under the Agreement are net amounts and shall be payable in full to the Company exclusive of VAT and without any deduction and/or withholding of any kind including for taxes and/or duties of any kind. The Fee shall be payable in the currency specified in the Agreement.

7.2. Unless otherwise agreed in the Agreement, the Company’s invoices are due within 30 days of the date of the invoice. In the event of late payment, penalty interest shall be paid in accordance with the Swedish Interest Act. In addition, the Company has the right to, without prior notice, cancel the Customer’s access to the Service until full payment has been made. Company shall have the right to commence collection proceedings in order to collect Customer’s outstanding debts and Customer shall reimburse Company for any such costs and expenses incurred by the Company.

7.3. The Company is entitled to raise the fees for the Service immediately (a) if the increase is directly attributable to external factors such as changes in exchange rates, taxes or other similar charge, and (b) in case of other similar changes or circumstances of economic importance outside our control and which affect the cost for providing the Service. In case that circumstances or events outside of the control of the Company (such as change of Customer’s servers, ERP systems, etc.) adversely affect the implementation of the Service, Company shall reimplement the Service subject to a separate mutual agreement between Company and Customer on the commercial terms for such reimplementation. The Company also reserves the right to adjust the fee for the Service from time to time as it sees fit. In such case, the Company shall notify the Customer of the adjustment no later than 90 days before the effective date thereof. If the Customer refuses such price adjustment, the Customer is entitled to terminate the Agreement by 30 days written notice.

7.4. Company may accept payments made by credit card, wire transfer, debit cards or other online payment services all as shall be detailed during the payment process in the Agreement (including if applicable, through Company’s website), or if otherwise agreed by Company by check or wire transfer to Company’s account in accordance with Company’s written instructions. Charges made through Company’s website may be facilitated through PayPal or other third-party payment processing services (“Payment Processor(s)”). By agreeing to these terms or continuing to use the Service, Customer agrees to be bound by the Payment Processor(s) terms of use, as they may be modified by them from time to time. As a condition of Company enabling payment processing services through the Payment Processor(s), Customer agrees to provide Company accurate and complete information about Customer, and Customer authorizes Company to share transaction information related to Customer’s use of the payment processing services provided by Payment Processor(s). Company may replace its third-party payment processing services without notice to Customer. Company may use a third-party service provider to manage credit card processing.

8. Availability, Service Limitations and Maintenance

8.1. During the term of the Agreement, subject to the terms of this Agreement, including Section ‎11 below: (i) the Company shall maintain the Service according to its internal maintenance plan, and (ii) the Company shall provide access to the Service in a professional manner and make commercially reasonable efforts to provide continuous access to the Service at the Access Point and to keep the Service operational.

8.2. The Company may carry out planned measures that affect the availability of the Services, which is required for technical, maintenance, operational or safety reasons. The Company shall perform such measures promptly and in a manner that limits the disruption.

8.3. The Customer’s or a Buyer’s access to the Service may also be suspended temporarily for the duration of any unscheduled downtime or unavailability for any reason outside the Company´s control, including because of power outages, system or Internet failures, a fault or failure of Customer’s, a User’s or a Buyer’s computer systems or networks; any breach by the Customer or a User of the Agreement or a Buyer of the Buyer Terms of Service; or if it is necessary in order to comply with international and national laws and regulations or the Company’s other contractual obligations. Nevertheless, the Company shall, to the extent possible, inform the Customer when such interruptions may occur.

8.4. The Customer is not entitled to compensation resulting from such limitation or lack of access as described in this Section 8.

8.5. The Company is responsible for development of the Service and reserves the right to decide, in its own discretion, what improvements and technical adjustments to make. The Company is entitled to modify and update, temporarily or permanently, the Service or its functions and features at any time, or the method of providing it, provided that such changes may evidently not affect the Customer negatively. The Company may, even if it would cause inconvenience to the Customer, implement changes in the Services due to security related purposes.

9. Confidentiality

9.1. Each Party undertakes not to disclose, without the consent of the other Party, to a third party, during the term of the Agreement and for a period of three years thereafter, any information regarding the other Party’s business that may be considered a business or professional secret or which according to law is subject to a duty of confidentiality. Company’s pricing information, the Software, all related information and materials and any know-how, process, methodology, tool, analytical method, algorithm or idea associated therewith and/or otherwise utilized by Company in connection with any services furnished or provided by Company to Customer hereunder, including any undertaken and/or created by Company in connection with any such services, and all related information and materials, and any other technical, trade, business or other information disclosed by or on behalf of Company, whether in oral, written, graphic, machine-readable or other form shall always be considered confidential information.

9.2. The confidentiality obligation does not apply to information that (i) was publicly known; (ii) was already known to the Party, or otherwise lawfully in its possession, at the time of disclosure by the other Party; (iii) has been obtained lawfully from a third party; or (iv) must be disclosed by requirement of mandatory law, court order or any competent governmental or other regulatory authority or applicable regulations of any applicable stock exchange.