1.1. Upon creation of a user account for the Service and following Divvit’s Order Confirmation, the Customer and Divvit enters into a binding agreement (the “Agreement”) consisting of (i) these terms of service (the “Terms of Service”), (ii) any applicable Service Descriptions or appendices referred to in the Agreement and (iii) the data processing agreement (the “Data Processing Agreement”, Appendix 1). In case of any inconsistencies, the Agreement documents shall take precedence in the following order (iii), (i) and (ii).
1.2. The Order Confirmation contains overall terms for the specific Service agreed upon, such as applicable prices, terms of payment and, if applicable, when your Trial Subscription ends.
“Customer” means the customer entity specified upon registration of a user account at Divvit.com. By accepting these Terms of Service, you being a natural person represent and warrant that you have the legal authority to bind the organisation that you represent.
“Customer Data” means information or other data that are provided to Divvit, directly or indirectly, by or on behalf of the Customer through use of the Services.
“Divvit” means the Swedish company Divvit AB with company reg. no. 559006-6121 and its registered offices at Lilla Fiskaregatan 6 B 4th Fl.
“Order Confirmation” means the confirmation sent by Divvit following Customer’s registration of a user account.
“Service” means the service(s) provided by Divvit under this Agreement, including the Service as well as any services ordered by the Customer and confirmed by Divvit.
“Service Description” means the service description(s) as provided at the Website.
“Subscription Plan” shall have the meaning set forth in the applicable Service Description.
“Third Party Products” means software, services and products that belong to/are provided by a person / company / organisation other than Divvit.
“Trial Subscription” means the Subscription Plan “Trial” as further described in the applicable Service Description.
“Usage restrictions” shall have the meaning set out in section 6.3 below.
“Visits” shall have the meaning set out in the applicable Service Description.
“Website” shall mean www.divvit.com or any subsequent website of Divvit.
3.1. Subject to Customer’s fulfilment of its payment obligations hereunder and within the scope of the applicable Usage Restrictions, Customer is granted a restricted, non-exclusive and time limited right to use the Service in accordance with the terms of the Agreement. The Customer may only use the Service on the Customer’s own websites unless otherwise agreed in writing between the parties.
3.2. Divvit shall provide the Service and the Customer shall pay for the Service from the agreed start date set out in the Order Confirmation.
3.3. Where the Customer does not comply with the terms of the Agreement and does not rectify the non-compliance within ten days of Divvit notifying the Customer of the non-compliance, Divvit is entitled to suspend the Service until rectification is made. Customer shall indemnify Divvit from any costs or claims by a third party based on the Customer's use of the Service in violation of the Agreement or applicable law.
3.4. Divvit reserves the right to make improvements, additions and changes, or to remove functions of the Service at its own discretion. Where such modification, although unlikely, removes a material function of the Service, the Customer may terminate the Service with immediate effect.
3.5. The Customer may only use a Third Party Product in conjunction with the Service in accordance with the licensing terms issued by the relevant third party.
4.1. Divvit will at all times use its best endeavours to ensure that the Service functions properly. If you have any support matters you are welcome to contact Divvit at firstname.lastname@example.org.
5.1. Unless otherwise agreed, the Customer is responsible for the following:
to install and set up all scripts and code provided by Divvit required for the Service to function properly in accordance with the instructions available on Divvit.com;
to maintain the equipment, software and communication services required to install and use the Service;
to provide required information to Divvit, review the actions of and make decisions that are necessary for Divvit to be able to provide the Service;
to promptly notify Divvit of any change at the Customer’s side that may affect Divvit and/or the Service; and
5.2. The Customer is fully responsible for maintaining the security of its IT-environment, such as the operating environment, networks and applications. The Customer is further always responsible for ensuring safe management of login details such as usernames and passwords for the customer portal and is always liable for any actions or omissions to act via the Customer’s user account(s). For the avoidance of doubt, Divvit is not liable for the Customer's hardware and software or if the functionality of the Customer’s webpage is affected adversely by the use of the Service.
5.3. The Customer may not in any way attempt to reverse engineer, decompile or otherwise recreate the Service or let any third parties use the Service.
5.4. The Customer is obliged to follow applicable user guidelines and Usage Restrictions and limitations set out in these Terms of Service, Service Descriptions and/or any other written instructions from Divvit for the use of the Service.
5.5. If the Customer’s use of the Service jeopardises the Service or other customers’ use of it, Divvit is at its own discretion entitled to suspend the Service until remedied by the Customer or terminate the Agreement with immediate effect.
6.1. The Customer shall pay for the Service from the calendar day on which the Service was first made available by Divvit. Unless specifically agreed otherwise in writing, applicable fees, payment intervals are indicated at the Website.
6.2. All payments will be charged automatically through the payment method chosen by the Customer when ordering. If the Customer has chosen to pay by way of credit- or debit card and the charge of the chosen card fails, Divvit may issue an invoice instead and/or suspend the Service until payment has been made. All invoices are due ten (10) days from the invoice date.
6.3. The price is based on the Subscription Plan subscribed for by the Customer under the Order Confirmation and includes the number of Visits per month (“Usage restrictions”) and support as set out in the applicable Service Description.
6.4. If payment is late or incomplete, Divvit is entitled to interest on overdue payment in accordance with the Interest Act (1975:635), a reasonable late payment charge and/or a debt collection fee according to applicable laws.
6.5. In addition to any other available remedies under the Agreement, if full payment is not received within ten (10) days from the date a written payment reminder was sent by Divvit, Divvit has the right to: (i) immediately suspend the Service, and/or (ii) terminate the Agreement with immediate effect pursuant to section 8.4.
6.6. This section 6.6 applies where the Customer pays for the Service on a monthly basis. If the number of Visits included in the Subscription Plan subscribed for is exceeded with more than 10 %; during two consecutive months; or three times during any 12 months period, the Customer will automatically be upgraded to the corresponding Subscription Plan. The Customer will receive a notice of such upgrade. Divvit will charge the Customer the difference between the fees paid for the old Subscription Plan and the higher amount to be paid under the upgraded Subscription Plan.
6.7. This section 6.7 applies where the Customer pays for the Service annually in advance. The Customer may utilise the Service for the monthly number of Visits included in the Subscription Plan multiplied by 12, during the 12 months period paid for in advance. The Customer will automatically be upgraded to the corresponding Subscription Plan if the actual number of Visits exceeds agreed number of Visits for the Subscription Plan ordered with more than 10 %. Such upgrade will have effect as from the first month the applicable subscription was started. The Customer will receive a notice of such upgrade. Divvit will charge the Customer the difference between the fees paid for the old Subscription Plan and the higher amount to be paid under the upgraded Subscription Plan for the applicable twelve month period.
6.8. For any work performed (following specific agreement in writing) that is not included in the Service, the Customer shall, unless otherwise expressly set out in the Order Confirmation, pay for such additional work on a time and materials basis in accordance with Divvit´s at the time of execution of the work applicable price list.
6.9. Divvit shall be entitled to adjust the prices at any time by providing written notice thereof to the Customer. Such change shall apply at the earliest when the Customer’s next payment is due.
7.1. The Customer may at any time choose to upgrade or downgrade its Subscription Plan through the customer portal used by the Customer to manage the Service. A downgrade will come into effect the following calendar month.
7.2. Divvit is entitled to make changes and amendments to the Agreement. Divvit shall without delay notify the Customer of the change or amendment. The Customer is entitled to terminate the Agreement with immediate effect if the change implies a material inconvenience for the Customer.
8.1. The Service is provided on a subscription basis. Unless otherwise is stated in the Order Confirmation, Divvit may terminate the Agreement upon three months’ written notice. The Customer may however terminate the Agreement with immediate effect at any time.
8.2. The Customer shall not be entitled to recover any excess amount of payments made in advance unless the Agreement is terminated by Divvit under section 8.1 or 8.41.a) or by the Customer under sections 3.4, 7.2 or 8.3.
8.3. Either party is entitled to terminate the Agreement with immediate effect where:
the other party has committed a material breach of the Agreement and does not fully rectify such breach within 30 days of the other party giving written notice thereof; or
the other party is declared insolvent, is subject of an application or order for bankruptcy or company reorganisation, suspends payments or otherwise can be presumed to be insolvent.
8.4. Divvit is entitled to terminate the Agreement with immediate effect where:
a third party supplier or subcontractor terminates an agreement with Divvit and as a consequence it is not commercially reasonable for Divvit to continue providing the Service under the Agreement; or
upon the Customer’s breach of any of its undertaking under section 5 or section 6.5.
9.1. Upon termination of the Agreement (completely or partially) (i) the Customer shall immediately cease its use of the Service, (ii) the parties shall promptly return, destroy or delete confidential information and other material submitted by the party in accordance with the other party's instructions, and (iii) each party shall cease all use of the other party´s intellectual property rights (including but not limited to de-installation and deletion of all copies of any software, scripts and code provided under the Agreement). If the termination only relates to a certain part of the Service, this section 9 shall apply only for the part of Service which has been terminated.
9.2. Upon prior written request made within 30 days after the termination of the Agreement or suspension of the Service, Divvit will export or let Customer retrieve the Customer Data currently in its possession and deliver it to the Customer in the format available to Divvit from time to time, currently Excel format. Such assistance from Divvit will be charged on a time and material basis according to Divvit’s at any time applicable price list. Divvit is entitled to request payment in advance in order to perform such Service. After such applicable period of time, Divvit will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession, unless legally prohibited. For the avoidance of doubt, Divvit is not responsible for the extraction, or for any loss of data, decreased quality of the data, migration to other format or similar in connection with the extraction or data migration in accordance with the Customer's instructions.
9.3. The rights and obligations of the parties set forth in this section 9 and sections 6, 10, 12 and 17, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
10.1. Divvit and/or Divvit's licensor(s) holds all rights, including all intellectual property rights, related to the Service and any therein included software and source code, including but not limited to patents, copyrights, design rights and trademarks. Nothing in this Agreement shall be interpreted as a transfer of such rights, or part thereof, to the Customer. Should the Service in any way require Divvit’s use of intellectual property rights held by the Customer, Divvit is granted a license by the Customer to utilise such intellectual rights for said purpose for as long as the Service is provided to the Customer.
10.2. The Customer shall not have the right to remove or alter any proprietary markings of Divvit in the Service unless explicitly agreed between the parties.
10.3. Divvit agrees to indemnify, as set out under section 10.5, the Customer from any claims by a third party based on the Customer's use of the Service, or part thereof, in Sweden, infringing any such third party's intellectual property rights. Divvit's obligations in accordance with section 10 are subject to the Customer only having used the Service in accordance with the conditions set forth in the Agreement.
10.4. Divvit's obligation to indemnify under section 10 only applies provided that the Customer:
without undue delay notifies Divvit in writing of the claims brought against the Customer;
allows Divvit to control the defence and to solely decide in all related settlement negotiations; and
acts in accordance with Divvit's instructions and cooperates with and assists Divvit to the extent reasonably requested by Divvit.
10.5. Subject to the conditions under sections 10.3-10.4, Divvit shall, within the agreed limitation of liability, indemnify the Customer for such damages, liabilities, costs or expenses awarded in a final judgment or settlement which has been approved in writing by Divvit.
10.6. If it is finally determined that there is an infringement of a third party's intellectual property rights, Divvit shall at its own discretion:
procure for the Customer the right to continued use of the Service;
modify the Service so that it does not infringe;
replace the Service, or part thereof, with an equivalent service which does not infringe; or
cancel the Service and repay the fees that the Customer has paid for the Service without interest and with deduction of any reasonable benefit the Customer might have had from the Service.
10.7. With respect to Third Party Products, Divvit's liability for errors or intellectual property infringements is restricted to an obligation to report the fault/infringement to the relevant third party supplier immediately. Divvit shall implement any potential solution from the third party supplier, provided this can be done without negative interference with the Service.
10.8. Section 10 constitutes the entire obligation of Divvit towards the Customer with respect to any infringement in a third party's intellectual property rights.
Divvit is entitled to engage subcontracts for the performance of its obligations under this Agreement. Divvit is responsible for the subcontractors’ work as for its own work.
12.1. Divvit is, with the limitations stated below, liable towards the Customer for damages caused by Divvit´s negligence, regardless of what legal ground the Customer uses for its claim.
12.2. Divvit is not liable for damage caused by (i) Third Party Products, or (ii) modifications or changes to the Service made according to the Customer’s instructions or performed by anyone other than Divvit (including but not limited to the Customer and Customer´s suppliers).
12.3. Divvit is not, under any circumstances, liable for the Customer's loss of profit, revenue, savings, or goodwill, loss due to operational, power or network interruptions, loss of data, the Customer’s potential liability towards a third party or indirect or consequential damages of any kind, without prejudice to section 10.3.
12.4. Divvit´s total and aggregate liability under the Agreement is, for each calendar year and regardless of the number of damages, without prejudice to section 10.3 limited to the fees paid by the Customer during the 12 months period prior to the time the damage(s) occurred. If the Customer uses the Service under a Trial Subscription Divvit’s aggregate liability, regardless of the number of damages, is limited to EUR 100.
12.5. Divvit is not liable for damages unless the Customer notifies Divvit in writing thereof no later than 90 days after the Customer noticed or should have noticed, the actual damage or loss, however no later than six months from when the damage occurred.
Each party shall be relieved from liability for damages for a failure to perform any obligation under this Agreement to the extent that the due performance is prevented by reason of any circumstance beyond the control of the party, such as stroke of legal enactment, labour disputes, loss of communication, mobilisation or military call-up by the larger scope, government regulations, restrictions on fuel, goods or energy, errors or delays in deliveries from subcontractors caused by any such circumstances referred to in this section subject to that the other party is immediately notified thereof.
14.1. The Customer is the data controller for any personal data processed by Divvit on behalf of the Customer in relation to the Service and Divvit its data processor. The Parties have therefore agreed to enter into the Data Processing Agreement (Appendix 1), which shall remain effective independently of the Agreement otherwise for as long as Divvit processes personal data on behalf of the Customer. For the avoidance of doubt, sections 1.14, 1.19 and 1.21 in the Data Processing Agreement (Appendix 1) will survive any termination or expiration of this Agreement.
15.1. The Parties hereby agree not to, without the other party’s prior written approval, publish or otherwise disclose to a third party any information relating to the other party’s business which is or can be reasonably presumed to be confidential, with the exemption for;
information that is or becomes publicly known, except through a breach of this Agreement by the receiving party;
information that is public to the receiving party from third party without obligation of confidentiality;
information that was known to the receiving party prior to receipt from the disclosing party, without obligation of confidentiality; or
the disclosure or use of information is required by law, regulations or any other regulatory body.
15.2. Information which a party has classified as confidential shall always be treated as confidential information.
15.3. Each party is liable for that their subcontractors, consultants and employees respect this confidentiality clause. The confidentiality obligation set forth in this section 15 shall remain in effect during the term of this Agreement and for a period of three years after the termination of the Agreement.
16.1. The Agreement forms the parties' entire understanding of all the questions related to the Services. All written or oral representations or warranties prior to the Agreement are replaced by the Agreement.
16.2. The Agreement may not be assigned to a third party without the other party's prior written approval. Divvit is however entitled to assign the Agreement to a third party in connection with a transfer of Divvit's business or a part thereof and to companies within the same group as Divvit.
16.3. Agreement documents are entered into in English unless Divvit offers the Customer otherwise.
16.4. Customer undertakes to save a copy of these Terms of Service as well as any Order Confirmation and other documentation related to the Agreement. Divvit does not undertake to provide additional copies unless otherwise agreed.
17.1. This Agreement shall be governed by and construed in accordance with Swedish law.
17.2. Any dispute arising out of this Agreement shall be settled by the Swedish District Court of Lund.
General. Divvit will process personal data for which the Customer is the data controller of under applicable data protection law. The parties have therefore agreed to enter into this Data Processing Agreement to provide for the respective party’s obligations in respect of such personal data processing. Terms and concepts used in capitalised letters not defined herein shall have the meaning set forth in the Terms of Service agreed between the parties (the currently applicable version of which is available at the Website). Where appropriate, other terms and concepts shall have the meaning provided for under applicable personal data law.
Divvit’s responsibilities and obligations. Divvit or its personnel working under its management may only process personal data in accordance with the Customer’s documented instructions. In addition to the instructions set forth in Sub-Appendix 1 (Instructions on processing of personal data) to this Data Processing Agreement, the Agreement and Divvit’s performance thereof shall be the Customer’s documented instructions to Divvit in respect of processing of personal data. Divvit may suggest new or amended instructions as reasonably required in the opinion of Divvit (e.g. due to changes in the Service) and while it is the Customer’s right to approve or reject such instructions, should the Customer not approve the instructions as suggested by Divvit, section 1.19-1.20 shall apply.
As of 25 May 2018 (the “Commencement Date”), Divvit may further process personal data on behalf of the Customer to the extent required under Union or a Member State’s national law to which Divvit is subject to. Divvit shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
Divvit may, for the avoidance of doubt, use personal data in aggregated format for purposes such as statistics and product development. Such aggregated data may also be used to provide elements of the Service.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Divvit shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
the pseudonymisation and encryption of personal data;
the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Divvit is obligated to take the technical and organisational measures required under applicable data protection law to protect the personal data processed on behalf of the Customer from unintentional or unlawful destruction, loss or modification or unauthorised disclosure of or access to such personal data.
Divvit may take other or additional measures as required due to new or amended legislation, or as a result of decisions by public authorities.
After the end of the provision of Services relating to the processing of personal data under this Data Processing Agreement and at the choice of the Customer, Divvit will delete or return all personal data processed under this Data Processing Agreement to the Customer, and delete existing copies unless Union or Member State law requires storage of the personal data. Divvit’s obligation to return personal data ends 30 days following termination of the Agreement if the Customer has not requested the return of personal data in writing by then.
Divvit may transfer personal data for which the Customer is the data controller to countries outside the EEA, subject to applicable legal requirements in respect of protection of personal data in relation to such transfers being observed.
Up until the 24 May 2018, the Customer gives Divvit mandate to and Divvit shall enter into data processing agreements that are as stringent as this Data Processing Agreement on behalf of the Customer with other data processors that process personal data on behalf of the Customer in their capacity of Divvit’s subcontractors (”sub-processors”). As of the Commencement Date, Divvit is instead authorised by the Customer to engage sub-processors and shall enter into data processing agreements in its own name with such sub-processors that are as stringent as this.
Divvit shall inform the Customer of any intended changes concerning the addition or replacement of other sub-processors, thereby giving the Customer the opportunity to object to such changes.
Divvit shall make available to the Customer an accurate and up-to-date list indicating the sub-contractors engaged, contact details to these as well as the geographical location where their processing activities in respect of the personal data for which the Customer is the data controller of are performed. Such list to be made available in the manner decided by Divvit, e.g. on Divvit.com.
Divvit shall remain fully liable to the Customer for the performance of that other processor's obligations if a sub-processor fails to fulfil its data protection obligations.
Divvit’s liability for damages under this Data Processing Agreement or otherwise in relation to processing of personal data for which the Customer is the data controller is limited as set forth in section 12 of the Terms of Service.
Special obligations from the Commencement Date. Divvit shall as of the Commencement Date:
assist the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the Data Protection Regulation taking into account the nature of processing and the information available to Divvit;
taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising data subjects’ rights laid down in Chapter III of the Data Protection Regulation;
upon reasonable notice, make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in article 28 of the Data Protection Regulation and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer; and
ensure that persons authorised to process personal data on behalf of the Customer have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
The obligation under this section 1.15 d) shall not apply in relation to information that Divvit is ordered to disclose or submit to public authorities or information disclosed in order to exercise or defend legal claims, whether in court proceedings or in an administrative or out-of-court procedure.
The Customer’s responsibilities and obligations. The Customer is in its capacity of data controller liable to ensure that the processing of personal data carried out within the scope of the Service is compliant with applicable law, including but not limited to data protection law. Such requirements include, but is not limited to, the provision of information about processing of personal data to data subjects concerned.
The Customer shall inform Divvit of the content and significance of applicable data protection law to the extent relevant for the processing of personal data carried out under this Data Processing Agreement as well as supervisory authorities’ actions and decisions in respect of such processing of personal data. Without prejudice to the Customer’s right to instruct Divvit on how to process personal data and for the avoidance of doubt, Divvit is not obligated to comply or take any measures due to such information as referred to in this section 1.18.
The Customer shall pay reasonable compensation for all work and costs for Divvit to accommodate:
such documented instructions by the Customer as referred to in section 1.2 to that are not expressly specified in this Data Processing Agreement and which in Divvit’s opinion would not be commercially reasonable to accommodate (e.g. instructions that in Divvit’s opinion would require the standardised Service or the technical setup required to provide it be specially adapted for the Customer);
such assistance with information and audits referred to in section 1.15 c) above;
the Customer’s objection against the use of a specific sub-processor as provided for in section 1.11 above; and
return of personal data as provided for in section 1.8 above; and
assistance in relation to actual requests to the Customer by data subjects as referred to in section 1.15 b) above.
Having regard to the standardised nature of the Service, Divvit may instead of accommodating such requests by the Customer as referred to in section 1.17 a) and c) above, without prejudice to section 1.8 above, choose to terminate the Agreement with immediate effect. The Customer shall not be entitled to any refund of fees paid for the Service and Divvit is relieved of any and all liability for any damages caused by Divvit’s termination for such reason.
The Customer shall indemnify and hold Divvit harmless of any and all direct and indirect damages, including as a result of claims by data subjects or administrative fines, incurred by Divvit as a result of the Customer’s breach of this data processing agreement, the Customer’s act or omission to act in accordance with applicable data protection, any other circumstance attributable to the Customer’s side or Divvit’s violations of applicable laws and regulations, including data protection law, due to vague, unlawful or absence of instructions or information from the Customer.
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