General Terms and Conditions – Dev Kit
Blixt” referred to in these general terms and conditions (the “General Terms”) is Blixt Tech AB, a Swedish company limited by shares under company registration number 559149-3233. The “Customer” referred to is the company who has ordered Blixt’s proprietary demo development kit (the “Product”) from Blixt. Blixt and the Customer are jointly referred to as the “Parties”, each being a “Party”.
These General Terms set out the rights and obligations between the Parties regarding the provision of the Product and constitute an integral part of the agreement between Blixt and the Customer (the “Agreement”). The Agreement consist of the order form specifying Customer’s order of the Product (the “Order Form”), these General Terms and any other documentation referred to as being part of the Agreement. In the event of any conflict between the documents forming the Agreement, these General Terms shall, unless explicitly stated otherwise, take precedence. No other general terms, such as those of Customer, shall apply.
2. Blixt’s provision of the Product
2.1 For the term of the Agreement and subject to the provisions of these General Terms, Blixt grants to the Customer a non-exclusive, revocable, non-transferable and non-assignable right to use the Product.
2.2 All rights, including intellectual property rights, to the Product and any software or code included therein shall continue to vest in Blixt, or its licensors, and the Customer shall, at the choice of Blixt, either destroy or return the Product to Blixt upon termination of the Agreement.
3. Customer’s use of the Product
3.1 The Product is, unless agreed otherwise, provided to the Customer for the sole purpose of the Customer being able to use the Product for non-commercial purposes, such as for researching, prototyping and testing of the Product in a lab environment. For the avoidance of doubt, this limited right to use the Product does not include a right for the Customer to give, sublicense, sell, share, release, convey, manufacture or otherwise distribute or duplicate the Product and/or any accompanying intellectual property rights or Confidential Information (defined below) to any third party. Neither does this limited license include a right for the Customer to develop or modify the Product, nor to incorporate the Product into other products.
3.2 Notwithstanding the above mentioned in clause 3.1, however solely for the purpose as set out specifically in these General Terms, the limited license includes a right for the Customer to copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, develop or create derivative works of any software, or any part thereof, that is included in the Product. Some of the software included in the Product may however be offered under an open source license. Open source licenses constitute separate written agreements. In the event of a conflict between the open source license agreement and these General Terms, the open source license agreement instead sets forth the terms for the Customer’s use of the applicable open source software. Use of open source software in the Product is listed in the documentation forming part of the Agreement.
3.3 The Customer may only use the Product as permitted under applicable legislation and in accordance with the provisions of these General Terms. The Customer is liable for and shall indemnify and hold Blixt harmless for and against any claims due to Customer’s non-compliance with this provision.
3.4 If the Customer’s use of the Product leads to any patentable invention, the Customer shall notify Blixt and Blixt shall have the sole right to file for patent protection of such invention in its own name.
4. Intellectual property rights
4.1 Blixt, or its licensors, owns all intellectual property rights relating to the Product and any software included therein, including but not limited to patents (including utility models), design patents, design rights (whether or not capable of registration), copyrights, copyright related rights (Sw. närstående rättigheter), moral rights, rights in databases, trademarks, trade secrets, know-how, topography rights and semiconductor chip rights, and all other intellectual property rights.
4.2 For the term of the Agreement and subject to the provisions of these General Terms, Blixt grants to the Customer a non-exclusive, revocable, non-transferable and non-assignable right to use Blixt’s intellectual property as is necessary to enable the Customer to exercise its rights and to otherwise use the Product as set out in the Agreement. Upon termination of the Agreement, this limited license from Blixt to the Customer will automatically terminate.
4.3 The Customer shall not acquire any intellectual property rights to the Product by means of the Agreement. To the extent not initially owned by Blixt, the Customer hereby irrevocably assigns and transfers to Blixt any intellectual property that arises or is obtained or developed as a result of the activities performed by the Customer under the Agreement. The Customer guarantees that, to the best of his or hers knowledge, all intellectual property assigned and transferred to Blixt is free from all encumbrances.
5.1 Blixt shall deliver the product as agreed in the Order Form and according to the terms ex works (Incoterms 2010).
5.2 Upon delivery, the Customer shall inspect the Product delivered for any visible defects and ensure that the quantities delivered correspond with the quantities ordered.
5.3 Should any damages be noted which are assumed to have occurred during the transport or the delivered quantity of Products deviate from the quantity ordered by the Customer, the Customer shall without delay, but no later than within five (5) work days notify Blixt. Should the Customer neglect to make a complaint in accordance with this provision the Customer shall lose the right to exercise any remedies with respect to any damages or deviation.
6. Price and payment
6.1 The price for the Product is the price set out in the Order Form.
6.2 The Customer’s payment for the Product shall be made prior to Blixt’s delivery of the Product. Payment shall, unless agreed otherwise, be made in EUR. Payment shall be considered to have been effected when Blixt has received full payment for the Product.
Except as expressly set out in these General Terms, the Product and any software included therein, and for the sake of clarity any intellectual property rights therein, is provided “as is”. Blixt makes no other representation, warranties, indemnities or undertakings with respect to the Product, whether express or implied, arising by law or otherwise, with respect to any deficiency or other faults, defects or nonconformities, including but not limited to implied warranties of merchantability, infringement or fitness for a particular purpose.
8. Limitation of liability
Unless otherwise expressly provided in the Agreement, and to the extent permitted by law, Blixt shall have no liability for any damage or loss of any kind under or in connection with the Agreement, regardless of how it was caused and whether such damage or loss was foreseeable or not at the time when the Agreement was formed (even if advised of the possibility of such damage or loss).
All information which is not publicly available, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a Party or to any of its business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”) or which the Receiving Party has or may otherwise become aware of in connection with this Agreement, shall at all times be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of this Agreement, nor be disclosed by it to any third party without the prior written consent of the other Party (such consent not to be unreasonably withheld).
10. Force Majeure
If and to the extent that either Party’s performance of its obligations under this Agreement is impeded or made unreasonably onerous by circumstances beyond its reasonable control, such Party shall be released from liability in damages and any other penalties for delay in performing or failure to perform such obligations.
11. Term and termination
11.1 The Agreement shall commence on the date when the Order Form has been confirmed by Blixt and (subject to earlier termination pursuant to Clause 11.2) shall remain in full force and effect for an indefinite term until terminated by either of the Parties giving to the other Party not less than three (3) months written notice to that effect.
11.2 Without prejudice to any remedy it may have against the other Party for breach or non-performance under the Agreement, either Party shall have the right to terminate the Agreement with immediate effect:
(a) if the other Party should commit or permit a breach or non-performance of material importance to the other Party and should fail to remedy such breach or non-performance within 30 days after receipt of written notice; or
(b) if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganisation proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership.
For the avoidance of doubt, the above means that Blixt shall have the right to terminate the Agreement with immediate effect if the Customer uses the Product in breach of these General Terms. Further, notice of termination for reason set out in this section 11.2 shall be given without undue delay after the circumstance constituting the breach was or should have been known to the aggrieved Party.
12. Changes to these General Terms
Blixt may, from time-to-time, change these General Terms. Any changes will come into force three (3) months from Blixt’s notification to Customer of the change or when Customer has accepted the change, if earlier. If the Customer does not approve to a change which is to the detriment of the Customer, the Customer has the right to within one (1) month from such notice in writing terminate the Agreement with effect from the date the change would have taken effect. Any other changes and additions to any part of the Agreement must be in writing and duly executed by the Parties, unless explicitly stated otherwise.
13.1 The Customer may contact Blixt by using the email address or postal address that, from time to time, are made available on Blixt’s website. Blixt may contact the Customer by using the email address or postal address provided to Blixt in the Order Form.
13.2 Notices under the Agreement shall be considered received by the other Party, if sent by email, at the time of dispatch unless the Party who sent the notice receives a notice that the email was not delivered, and if sent by post, on the second business day after such notice was sent.
14.1 On termination of the Agreement, regardless of the reason for such termination, provisions contained in the Agreement that are expressed or by their sense and context are intended to survive the expiration or termination of the Agreement, shall so survive the expiration or termination and continue in full force and effect.
14.2 The Customer may not assign nor transfer any part of its rights or obligations under the Agreement without the prior written consent of Blixt. Blixt may assign or transfer its rights without restriction.
15. Governing law and disputes
15.1 The Agreement shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.
15.2 Any dispute, controversy or claim arising out of, or in connection with, the Agreement, or the breach, termination or invalidity thereof, shall be exclusively settled by the courts of Sweden. The District Court of Stockholm (Sw. Stockholms tingsrätt) shall be the court of the first instance.