Terms & Conditions

Last updated on December 8, 2023

Section I. General Provisions

§ 1

As defined by these Terms and Conditions:

“Order Form” means the medium by which the parties agree to Customer’s purchase of this Cloud Service.
“Agreement” means an Order Form and documents incorporated into an Order Form, including these Terms & Conditions.
“Authorized User” means any individual that Customer authorizes to use the Cloud Service that is an employee, agent, contractor, or representative of Customer or Customer’s Affiliates.
“Cloud Service” means any distinct, subscription-based, hosted, supported, and operated on-demand solution provided by Qualtive under an Order Form.
“Cloud Materials” means any materials, except for personal data, provided or developed by Qualtive (independently or with Customer’s cooperation) in the course of performance under the Agreement, including Analyses and materials provided or developed in the delivery of any support or Professional Services to Customer. Cloud Materials do not include Customer Data, Customer Confidential Information.
“Qualtive” is the Cloud Service delivered by Nightshift Habits AB thereof set forth in the Order Form.
“Confidential Information” means all information that the disclosing party protects against unrestricted disclosure to others that (a) the disclosing party or its representatives designate as confidential, internal, or proprietary at the time of disclosure, or (b) should reasonably be understood to be confidential at the time of disclosure given the nature of the information and the circumstances surrounding its disclosure.
“Customer” means the customer set forth in the Order Form.
“Customer Data” means any content, materials, data, and information that Authorized Users enter or collect into the production system of a Cloud Service or that Customer derives from its use of and stores in the Cloud Service (e.g., Customer-specific reports). Customer Data and its derivatives will not include Qualtive’ Confidential Information.
“Documentation” means Qualtive’ then-current technical and functional documentation, including any roles and responsibilities descriptions relating to the Cloud Services, that Qualtive makes available to Customer under the Agreement.
“Cloud Service Feedback” means input, comments, or suggestions regarding Qualtive’ business and technology direction and the possible creation, modification, correction, improvement, or enhancement of the Cloud Service or Cloud Materials.
“Subscription Term” means the term of a Cloud Service subscription identified in the Order Form, including all renewals.
GDPR – means Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation, Official Journal of the European Union L. of 2016, No. 119, p. 1).

§ 2

Usage Rights and Restrictions

Grant of Rights. As set forth in the Order Form, Nightshift Habits’s grants to Customer a non-exclusive and non-transferable right to use the Cloud Service, Cloud Materials, and Documentation solely for Customer’s and its Affiliates’ internal business purposes, including collecting information from third parties for such internal business purposes.
Authorized Users.Customer may permit Authorized Users to use the Cloud Service. Customer will not permit access credentials for the Cloud Service to be used by more than one individual but may permit them to be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service.
Acceptable Use Policy. Customer will not:
- copy, translate, disassemble, decompile, make derivative works, or reverse engineer the Cloud Service or Cloud Materials (or attempt any of the foregoing);
- enter, store, collect, or transfer any content or data on or through the Cloud Service that is unlawful or infringes any intellectual property, privacy, publicity, or other rights;
- use the Cloud Service in a way that circumvents Usage Metrics;
- access the Cloud Service through unauthorized means (e.g., scraping, crawling, or penetration testing);
- circumvent or endanger the operation or security of the Cloud Service; or
- remove Qualtives’ copyright and authorship notices from the Cloud Service or Cloud Materials.
Suspension of Cloud Service Nightshift Habits’s may suspend or limit use of the Cloud Service if continued use breaches Section 2.3 or may result in material harm to the Cloud Service or its users. Nightshift Habits’s will promptly notify Customer of the suspension or limitation and will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.
Third-Party Web Services Through the Cloud Service, Customer may access integrations with web services made available by third parties and subject to terms and conditions with those third parties. These third-party web services are not part of the Cloud Service, and the Agreement does not apply to them.

Section II. Qualtive Responsibilities

§ 3

Provisioning. Nightshift Habits’s provides access to the Cloud Service as described in the Agreement.
Support. Nightshift Habits’s provides support for the Cloud Service as referenced in the Order Form or the Documentation.
Security. Nightshift Habits’s will implement and maintain technical and organizational measures to protect data managed by Nightshift Habits’s as part of the Cloud Service. The protection of personal data is as described in the Data Processing Agreement (DPA).
Modifications.
1. Nightshift Habits’s may modify the Cloud Service if such modification does not materially degrade the Cloud Service. Nightshift Habits’s will inform Customer of modifications by email or the Cloud Service. Modifications may include optional new features for the Cloud Service.
2. If a modification materially degrades the Cloud Service, Customer may, by notifying Nightshift Habits’s in writing within 30 days after receiving Nightshift Habits’s information notice, terminate its subscription to the affected Cloud Service.
Analyses.
1. Nightshift Habits’s or Qualtive’s Affiliates may create analyses using, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Professional Services, as set forth below (“Analyses”). Nightshift Habits’s will anonymize, and aggregate information included in Analyses, and Analyses will not include any personal data.
2. Analyses may be used for the following purposes:
  - product improvement (in particular, product features and functionality, workflows, and user interfaces) and development of new Nightshift Habits’s products and services,
  - improving resource allocation and support,
  - internal demand planning,
  - improving product performance,
  - verification of security and data integrity, and
  - identification of industry trends and developments, creation of indices and anonymous benchmarking.

Section III. Customer and Personal Data

§ 4

Customer Data. As between the parties, Customer is responsible for the content and accuracy of the Customer Data and for entering it into the Cloud Service.
Personal Data. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws. The DPA will govern the processing of any personal data in the Cloud Service.
Security. Customer will maintain reasonable security standards for its Authorized Users use of the Cloud Service. Customer will not conduct or authorize penetration tests of the Cloud Service without Nightshift Habits’s prior written consent.
Access to Customer Data.
1. During the Subscription Term, Customer may access Customer Data at any time and may export and retrieve Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Nightshift Habits and Customer will find an alternative reasonable method to allow Customer access to Customer Data, which may include Nightshift Habits’ delivering an export to Customer upon Customer’s request through a support ticket.
2. After the end of the Agreement, Nightshift Habits’s will delete all Customer Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
3. If Customer requires Nightshift Habits’s assistance in connection with third-party legal proceedings relating to the Customer Data, Nightshift Habits’s will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

Section IV. Service Contract

§ 5

Service Contract. A contract can be a Free Service or a Paid Service.
1. Free Service First 90 days from the date of Registration (Free Account Subscription Service, also referred to as the “Trial Period”);
2. Paid Service

§ 6

Free Service. A contract for the Free Service commences once the Service Provider has confirmed that the Service has commenced to the Customer by sending an appropriate message to the email address provided by the Customer.
Trial Period.
1. The Contract for providing the Free Account Subscription Service (Trial Period) is concluded for a period of 90 days from the date of Registration.
2. The Trial Period allows the Customer to use the Account under the Trial Period Conditions that are stipulated in an email sent by the Service Provider on registration.
Service Upgrade. The Customer has the ability to use the Account after the expiry of the period referred to in Section 6.1, by entering into a Paid Account Subscription Service Contract with the Service Provider under the terms and conditions determined herein.
Archiving. In the event that, within the framework of the Free Account Subscription Service, the validity of the Account has expired, i.e. the period of 90 days for which the Contract for the Free Account Subscription Service was concluded has expired and no Contract for the Paid Account Subscription Service has been concluded, the Service Provider shall carry out Archiving. In the case of using the Free Account Subscription Service, Archiving lasts for a period of 3 (three) months counted from the end of the Trial Period (i.e. after the expiry of the period for which the Free Account Subscription Service Contract has been concluded). Once the Archiving period expires, the information stored within the Account is irretrievably deleted.

§ 7

Paid Service. A contract for the Paid Service commences.
1. The Customer has read and accepted Service Terms and Conditions.
2. The Customer has made the payment via Stripe, access to the Account within the Paid Account Subscription Service is activated automatically as soon as the amount due for the Service, i.e. the amount corresponding to the Price and the tax due (in accordance with the Price List), for the option chosen by the Customer within the Paid Account Subscription Service, is credited to the Service Provider’s account in the Stripe system.
3. The Service Provider has confirmed that the Service has commenced to the Customer by sending an appropriate message to the email address provided by the Customer.
4. Lack of a payment prevents the use of such Services.
Service Description. The detailed scope of the Paid Account Subscription Service according to specific options selected by the Customer can be found on the Website, in the Price List section at the URL https://www.qualtive.io/pricing.

§ 8

Term and Termination

Term The Subscription Term is as stated in the Order Form.
Termination. A party may terminate the Agreement:
1. upon 30 days’ prior written notice of the other party’s material breach of the Agreement unless the breach is cured during that 30-day period;
2. as permitted under any other section herein (with termination effective 30 days after receipt of notice in each of these cases unless a different period is specified), or
3. immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or materially breaches Section 12.
Refund and Payments. For termination by Customer or termination by Nightshift Habits’s, Customer will be entitled to:
1. a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and
2. a release from the obligation to pay fees due for periods after the effective date of termination.
Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement:
1. Customer’s right to use the Cloud Service and all Nightshift Habits’s Confidential Information will end, and
2. Confidential Information of the disclosing party will be retained, returned, or destroyed as required by the Agreement or applicable law.

§ 9

Warranties

Compliance with Law. Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:
1. for Nightshift Habits’s, the operation of Nightshift Habits’s business as it relates to the Cloud Service, and
2. for Customer, the Customer Data and Customer’s use of the Cloud Service.
Good Industry Practices. Nightshift Habits’s warrants that it will provide the Cloud Service:
1. in conformance with the agreement between the parties; and
2. with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.
Remedy. Customer’s sole and exclusive remedies and Nightshift Habits’s entire liability for breach of the warranty under Section 9.2 will be:
1. the correction of the deficient Cloud Service, and
2. supplementary communication to the Customer providing status information and provide continuous reports regarding actions planned and taken related to errors and when an error is expected to be resolved.
3. if Nightshift Habits’s fails to correct the deficient Cloud Service, that Customer may, by notifying Nightshift Habits’s in writing within 6 (six) weeks after the failure, terminate its subscription to the affected Cloud Service and receive a refund as set forth in Section 8.3.
System Availability.
1. Nightshift Habits’s warrants to maintain an average monthly system availability of 99.9% for the production system of the Cloud Service.
2. If Nightshift Habits’s fails to meet this target for four consecutive months, for five or more months during any twelve-month period, Customer may, by notifying Nightshift Habits’s in writing within 30 days after the failure, terminate its subscription to the affected Cloud Service and receive a refund as set forth in Section 8.3.
Warranty Exclusions. The warranties in Sections 9.2 and 9.6 will not apply if:
1. the Cloud Service is not used in accordance with the Agreement or Documentation,
2. any non-conformity is caused by Customer or by any product or service not provided by Nightshift Habits’s, or
3. the Cloud Service was provided for no fee.
Disclaimer. Except as expressly provided in the Agreement, Nightshift Habits’s makes no representations or warranties, express or implied, statutory or otherwise, regarding any matter, including non-infringement or merchantability, suitability, originality, or fitness for a particular use or purpose. Customer acknowledges that it is not relying on delivery of future functionality, public comments, advertising of Nightshift Habits’, or product roadmaps in obtaining subscriptions for any Cloud Service.

§ 10

Amendment to Terms and Conditions

These Terms and Conditions enter into force on December 8 2023 and are available on the Website.
The Service Provider reserves the right to amend the Terms and Conditions in the event of at least one of the following valid reasons:
- a change in the law applicable to the provision of Services affecting the mutual rights and obligations determined in the Service Contract concluded between the Customer and the Service Provider;
- the need for the Service Provider to comply with orders, rulings, provisions, or guidelines arising from:
  - a decision of a public administration authority proper within the scope of the Service Provider’s operation, or
  - a judicial decision applicable to the Service Provider’s scope of activity affecting the mutual rights and obligations determined in the Service Contract concluded between the Customer and the Service Provider;
- a change in the manner of providing the Service by the Service Provider due exclusively to technical or technological reasons (in particular updating technical requirements);
- change in the scope or the principles for providing Services by the Service Provider to which the provisions of the Terms and Conditions apply, by introducing new, modifying, or withdrawing by the Provider the existing functionalities or Services covered by the Terms and Conditions and offered to the Customer;
- merger, division, or transformation of the Service Provider or changing other details of the Service Provider determined in the Terms and Conditions.
In the event of changing the content of the Terms and Conditions under the terms determined above, the Customer has the right to terminate the Service Contract within 14 days of being notified about changing the Terms and Conditions, sent by the Service Provider with due notice (21 calendar days).
In the event that the Terms and Conditions are amended, the Service Provider will make the consolidated text of the Terms and Conditions available by publishing it on the Website and by means of a message sent to the email address provided by the Customer.
In terms of amendments to the Terms and Conditions which do not affect the functionality of the Website, the version of the Terms and Conditions in force on the date of concluding the Contract shall apply to contracts concluded before the amendment to the Terms and Conditions.

Section V. Intellectual Property Rights and Confidentiality

§ 11

Intellectual Property Rights

Nightshift Habits’s Ownership. Except for any rights expressly granted to Customer under the Agreement, Nightshift Habits own all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, design contributions, related knowledge or processes, and any derivative works of them.
Customer Ownership. Customer retains all rights in and related to the Customer Data.

§ 12

Confidentiality

Confidential Information of either party disclosed prior to execution of the Agreement will be subject to this Section.
The receiving party will:
1. maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the disclosing party’s Confidential Information substantially similar to those steps that the receiving party takes to protect its own Confidential Information, which will not be less than a reasonable standard of care;
2. not disclose any Confidential Information of the disclosing party to any person other than its Affiliates, employees, contractors, agents, legal representatives, accountants, or other professional advisors, in each case whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality no less onerous than those in this Section;
3. not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and
4. retain any confidential, internal, or proprietary notices that appear on the original and on any reproductions.
Disclosure by Law. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law, regulation, court order, or regulatory agency, on the condition that the receiving party uses reasonable efforts to give the disclosing party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the disclosing party. The receiving party will use commercially reasonable efforts to disclose only that portion of the Confidential Information that is legally requested to be disclosed and will request that all Confidential Information that is so disclosed be accorded confidential treatment.
Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:
1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
2. has become generally known or available to the public through no act or omission by the receiving party,
3. at the time of disclosure, was known to the receiving party free of confidentiality restrictions,
4. is lawfully acquired free of restriction by the receiving party from a third party having the right to furnish such Confidential Information, or
5. the disclosing party agrees in writing is free of confidentiality restrictions.
Destruction of Confidential Information. Upon the disclosing party’s request, the receiving party will promptly destroy or return the disclosing party’s Confidential Information, including copies and reproductions thereof. The obligation to destroy or return Confidential Information will not apply:
1. to Confidential Information that the receiving party is legally required to retain, including because legal proceedings related to the Confidential Information prohibit its return or destruction, until the proceedings are settled or a final judgment is rendered;
2. to Confidential Information held in archive or back-up systems may be kept for a limited period of time, provided that such information may not be deleted immediately upon request, and provided that such backed-up files are not used for any other purpose.

Section VI. Liability and Governing Law

§ 13

Third-Party Claims.
1. Claims Brought Against Customer
2. Claims Brought Against Nightshift Habits. Customer will defend and indemnify (as set forth in the next sentence) Nightshift Habits against claims brought against Nightshift Habits and its Affiliates and subcontractors by any third party related to Customer Data. Customer will indemnify Nightshift Habits against all damages and costs awarded against Nightshift Habits and its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
3. Third-Party Claim Procedure. All third-party claims under Section 13.1 will be conducted as follows:
  1. the party against whom a third-party claim is brought (the “Indemnified Party”) will timely notify the other party (the “Indemnifying Party”) in writing of any claim and will reasonably cooperate in the defense of such claim;
  2. the Indemnifying Party will have the right to fully control the defense;
  3. subject to Section 13.1B(b), the Indemnified Party may appear (at its own expense) through counsel reasonably acceptable to the Indemnifying Party;
  4. any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the Indemnified Party;
  5. and the Indemnifying Party’s obligations will not apply if the Indemnified Party’s failure to timely notify the Indemnifying Party in writing of any such claim prejudices the Indemnifying Party.
4. Exclusive Remedy. The provisions of Section 13.1 state the sole, exclusive, and entire liability of the parties and their Affiliates and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third-party claims and to the infringement or misappropriation of third-party intellectual property rights.
Limitation of Liability
1. Unlimited Liability. Neither party’s liability is limited with respect to:
  1. the parties’ obligations under Section 13.1A and 13.1B,
  2. death or bodily injury arising from either party’s gross negligence or willful misconduct, or
  3. Customer’s failure to pay any fees due under the Agreement.
Liability Cap. Subject to Section 13.1, the maximum aggregate liability of either party (or its respective Affiliates or Nightshift Habits’ subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any 12-month period will not exceed the annual fees paid for the applicable Cloud Service or Professional Service associated with the damages for that 12-month period.
1. Exclusion of Damages. Subject to Section 13.1, in no case will either party (or its respective Affiliates or Nightshift Habits’ subcontractors) be liable to the other party for any special, incidental, consequential, or indirect damages, loss of goodwill or business profits, work stoppage, or for exemplary or punitive damages.
Force Majeure. Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. For such a delay, the time for performance will be extended for a period equal to the duration of the conditions preventing performance.
Governing Law and Venue. This agreement shall be governed by and interpreted according to Swedish law. Any dispute, controversy or claim arising out of or in connection with this agreement shall be finally settled by Swedish Courts, with Stockholm District Court (Stockholm’s tingsrätt) as court of first instance.