APTW and Customer wish to enter into a project, whereby APTW will provide certain services (including interior design, project management and planning) and make certain items of furniture available to Customer on the basis of subscription, pursuant to these Terms and Conditions.
1.1 The following definitions and rules of interpretation apply in these Terms and Conditions:
Business Day: a day, other than a Saturday, Sunday or public holiday in Sweden.
Proposal: the NORNORM proposal set out in more detail in Annex 1.
Regular Maintenance: the maintenance services provided on the Subscription Furniture as defined in the Proposal.
Subscription Furniture: The items of furniture to be made available by APTW to Customer as a subscription, for use at the Site during the Subscription Period, as set out in more detail in the Proposal, as well as all substitutions, replacements or renewals of such furniture and all related manuals and instructions.
Services: any interior design, project planning, project management and other services provided by APTW to Customer as set out in more detail in the Proposal and Annex 2.
Site: Customer’s premises at the location as set out in the Agreement.
Subscription Commencement Date: the date that Customer takes delivery of the Subscription Furniture as described in clause 5.3. If delivery takes more than one day, the Subscription Commencement Date is set at the date delivery is completed.
Subscription Period: the period during which Customer subscribes to the Subscription Furniture as set out in the Proposal and Annex 2. The Proposal and Annex 2 form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the Proposal and Annex 2.
2.1 APTW shall undertake the Services as set out in detail in the Proposal. The Services shall in any event include the interior design for the Site, as provided in Annex 3. On the basis of this design, the parties shall agree on the Subscription Furniture to be provided to Customer, as described in the Proposal.
2.2 For the Services, Customer shall pay APTW fees as set out in Annex 2. The fees shall be paid by Customer in accordance with the payment terms as set out in Annex 2.
2.3 All intellectual property rights in any design or other works prepared by APTW shall remain with APTW. Customer shall not be entitled to use the design for any other purpose than as basis for the supply by APTW of the Subscription Furniture as agreed in this Agreement.
2.4 APTW warrants and represents that (i) it is qualified to perform the Services; (ii) all the Services shall be performed by qualified personnel, who will be properly supervised; and (iii) the Services shall be performed in a professional and workmanlike manner in accordance in all material respects with the terms of this Agreement.
3. FURNITURE SUBSCRIPTION
3.1 Customer hereby subscribes to the Subscription Furniture, as described in the Proposal, subject to the terms and conditions of this Agreement. The subscription includes delivery, assembly and installation of the Subscription Furniture, as well as Regular Maintenance.
3.2 For the Subscription Furniture, Customer shall pay to APTW a monthly subscription fee, as set out in Annex 2. The subscription fee shall be paid by Customer in accordance with the payment terms as set out in Annex 2. APTW shall be entitled to adjust prices at any time. If Customer does not accept the adjusted prices, he may terminate this agreement observing the applicable notice period.
3.3 If Customer wishes to move the Subscription Furniture to another site, it shall request permission to do so from APTW. Permission to move the Subscription Furniture to another site may be subject to additional conditions or fees, to be reasonably determined by APTW.
3.4 Customer shall during the term of this Agreement:
(a) ensure that the Subscription Furniture is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and reasonable usage instructions provided by APTW) as may be necessary to ensure, so far as is reasonably practicable, that the Subscription Furniture is at all times safe and without risk to health when it is being set, used, cleaned or maintained;
(c) upon receiving 48 hours’ notice, permit APTW or its duly authorized representative to inspect the Subscription Furniture and, for that purpose, enter the Site or any premises at which the Subscription Furniture may be located, and shall grant reasonable access and facilities for such inspection;
(d) not, without the prior written consent of APTW, part with control of, sell or offer for sale, underlet or lend the Subscription Furniture or allow the creation of any pledge or other security interest in respect of it;
(e) not without the prior written consent of APTW, attach the Subscription Furniture to any building so as to cause the Subscription Furniture to become a permanent or immovable fixture on such building. If the Subscription Furniture does become affixed to any land or building then the Subscription Furniture must be capable of being removed without material injury to such building or the Subscription Furniture, and Customer shall repair and make good any damage caused by the affixation or removal of the Subscription Furniture from any land or building and indemnify APTW against all losses, costs or expenses incurred as a result of such affixation or removal;
(f) not suffer or permit the Subscription Furniture to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Subscription Furniture is so confiscated, seized or taken, Customer shall immediately notify APTW and Customer shall at its sole expense use its best endeavors to procure an immediate release of the Furniture and shall indemnify APTW on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation; and
(g) ensure that at all times the Subscription Furniture remains identifiable as being APTW’s property and wherever possible shall ensure that a visible sign to that effect stays attached to the Subscription Furniture.
3.5 If and to the extent that Subscription Furniture is made available by Customer for use by a third party user at the Site, Customer shall ensure that Customer’s obligations as set out in clause 3.4 shall be mirrored in an agreement to be entered into between Customer and such a third party, and name APTW as a third party beneficiary to such provisions. In any event, the use of the Subscription Furniture by a third party user shall be for risk and account of Customer.
4.1 All fees shall be paid in Euro and shall be made by bank transfer to such account as notified by APTW to Customer from time to time.
4.2 All agreed fees are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by Customer at the rate and in the manner from time to time prescribed by law.
4.3 Reference is made to Annex 2. APTW shall prepare and submit to Customer invoices for monthly subscription fees, membership fees and any other services. Customer will pay undisputed invoices within the payment terms as mentioned in Annex 2. In case payments are late (reference is made to Annex 2), APTW will be entitled to enforce a late payment penalty of 8% per year of the amount that is overdue.
5. DELIVERY, ASSEMBLY AND INSTALLATION
5.1 Delivery of the Subscription Furniture shall be made by APTW or a third party appointed by APTW. APTW shall use all reasonable endeavors to deliver the Subscription Furniture by the date and time agreed between the parties, and set out in the Proposal, but such delivery times cannot be guaranteed. APTW will keep Customer informed of any delays in delivery.
5.2 APTW, or a third party appointed by APTW, shall assemble and install the Subscription Furniture at the Site in accordance with the results of the Services. APTW is responsible for the correct assembly and installation of the Subscription Furniture. In the event the characteristics of the Site differ from the information provided by Customer, APTW will use its best efforts to make the necessary adjustments, but Customer shall be responsible for all additional costs relating to such adjustments. Depending on the nature and extent of the adjustments, the Parties shall amend the Annexes to the Agreement and adjust the agreed accordingly.
5.3 Customer shall secure that a duly authorized representative of Customer is present at the installation of the Subscription Furniture. Acceptance by such representative of installation, after the completion of the assembly and the installation of the Subscription Furniture, shall constitute conclusive evidence that Customer has examined the Subscription Furniture and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. This will be laid down in an Hand-over document.
5.4 Customer shall at its sole expense provide all facilities, access and suitable working conditions to enable delivery, assembly and installation to be carried out safely and expeditiously.
6. TITLE, RISK AND INSURANCE
6.1 The Subscription Furniture shall at all times remain the property of APTW, and Customer shall have no right, title or interest in or to the Subscription Furniture (save the right to use the Subscription Furniture in accordance with the terms and conditions of this Agreement).
6.2 The risk of loss, theft, damage or destruction of the Subscription Furniture shall pass to Customer at the moment of receiving the Subscription Furniture at the Customer location. The Subscription Furniture shall remain at the sole risk of Customer during the Subscription Period and any further term during which the Subscription Furniture is in the possession, custody or control of Customer until such time as the Subscription Furniture is collected by APTW.
6.3 During the Subscription Period, Customer shall, at its own expense, obtain and maintain insurance to a value not less than the full replacement value of the Subscription Furniture, against all risks commonly insured against, including but not limited to risk of loss, damage or destruction by fire, theft or accident, and such other risks as APTW may from time to time nominate in writing. The full replacement value of the Subscription Furniture is to be set at: the number of square meters included in the subscription multiplied by 300 EUR. In any event, the insurance shall expressly extend to goods belonging to APTW. If Customer fails to effect or maintain any of the insurances required under this Agreement, APTW shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as an expense and debt due from Customer.
6.4 Customer shall, upon acceptance and hand-over mentioned in clause 5.3, supply copies of the relevant insurance policies or other insurance confirmation acceptable to APTW that show that APTW is the beneficiary to any claims paid out in relation to goods belonging to APTW and proof of premium payment to APTW to confirm the insurance arrangements.
6.5 Any phone booth included in the Subscription Furniture meets EU-regulations. This however does not necessarily mean that these phone booths meet local regulations, including fire regulations, which might require that (for example) a sprinkler installation is installed in the phone booth. It is the obligation of Customer to investigate and if needed make sure the phone booths meets local regulations. Customer acknowledges and agrees that APTW is not responsible for ensuring that the phone booths delivered meet local regulations and APTW cannot be held liable for any damages, cost, penalties and/or administrative fines incurred by Customer as a result of such a failure to comply with local regulations.
7. COMPLAINTS, WARRANTY AND REPAIRS
7.1 APTW warrants that the Subscription Furniture shall substantially conform to their specification, be of satisfactory quality and be fit for any purpose held out by APTW and as specified further in the Proposal.
7.2 In case of damaged Subscription Furniture due to regular use, APTW will be responsible for repair of the item or replacement with a comparable item, at its sole discretion, but in accordance with this Agreement. These repair or replacement costs are for the account of APTW.
If the defect (damage) materializes as a result of misuse, neglect, alteration, mis-handling or unauthorized manipulation or any other cause that can be attributed to Customer or a third party beyond normal wear and tear, all cost for repair and replacement will be charged to Customer.
7.3 If and to the extent that Subscription Furniture is not specifically designed, certified or approved for use in a commercial or professional environment, APTW will inform Customer immediately and shall not be liable or responsible for the fitness of such items for Customer’s purpose. APTW shall notify Customer of any such restrictions with respect to the Subscription Furniture.
8.1 The restrictions on liability in this Clause 8 apply to every liability arising under or in connection with this Agreement including but not limited to liability in contract, negligence and wrongful act.
8.2 Subject to Clause 8.3, the aggregate liability of APTW to the Customer during the term of the Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors) shall not exceed an amount equal to three months’ subscription fee.
8.3 Neither party shall be liable under this Agreement for any loss of profit, loss of revenue, loss of business, or other indirect or consequential loss or damage, in each case, however caused, even if foreseeable.
8.4 Nothing in this Agreement limits any liability which cannot legally be limited including but not limited to liability for death or personal injury, willful intent or gross negligence.
8.5 This Agreement sets forth the full extent of APTW’s obligations and liabilities in respect of the Services and the Subscription Furniture.
9. TERM AND TERMINATION
9.1 The Agreement shall be effective as of the date stated at its top and shall remain effective until terminated in accordance with this Section 9.
9.2 The Subscription Period shall start on the Subscription Commencement Date and shall continue for an indefinite term. Either Party shall be entitled to terminate this Agreement for convenience while observing a notice period of six months.
9.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if such other party:
(a) fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
(b) commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
(c) repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) suspends, or threatens to suspend, payment of its debts or is (or is likely to be) unable to pay its debts as they fall due, or admits inability to pay its debts, or an application is made to court, or an order is made, for the appointment of an administrator or trustee in bankruptcy, over such party;
(a) files a petition, gives notice, or a resolution is passed for or in connection with the winding up of such party; or
(f) suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9.4 Customer shall immediately notify APTW in the event that a creditor of Customer (including the relevant tax authorities) seeks to, attaches or takes possession of the Subscription Furniture, or of the whole or any part of Customer’s assets. In the event such attachment or process is not discharged within 14 days, APTW shall be entitled to terminate this Agreement with immediate effect and should APTW have to recover such creditor possessions of the Subscription Furniture, the costs therefore will be charged Customer and should such recovery not be reasonably possible, Customer shall reimburse APTW for the full value of the relevant Subscription Furniture.
10. CONSEQUENCES OF TERMINATION
10.1 Upon termination of this Agreement (which would, for the avoidance of doubt, terminate after a 6 months’ notice period), however caused, APTW’s consent to Customer’s use of the Subscription Furniture shall terminate and APTW may, by its authorized representatives, without notice, retake possession of the Subscription Furniture and for this purpose may enter the Site or any premises at which the Subscription Furniture is located.
10.2 Upon termination of this Agreement by APTW pursuant to 9.3 or 9.4 (without prejudice to any other rights or remedies of APTW) Customer will be obliged to pay (i) all outstanding monthly terms and the remaining monthly terms during the notice period, (ii) late payment interest and collection costs, if applicable, (iii) the costs incurred in repossessing the Subscription Furniture, and (iv) the then applicable de-installation fee for the Subscription Furniture. The total costs charged for (iii) and (iv) are €15,- per sqm (excluding VAT).
10.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11. FORCE MAJEURE
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for eight (8) weeks, either party may terminate this Agreement by giving seven (7) days’ written notice to the other party.
12. CONFIDENTIAL INFORMATION
Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 12.2.
Each party may disclose the other party’s confidential information to its affiliates, employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its affiliates, employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 12; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
The parties shall not: (a) use its relationship with other party, any affiliate of the other party or the existence of this Agreement for any marketing or financing purposes; (b) refer to the other party, any affiliate of the other party or this Agreement in any company presentations or press releases; or (c) use in any way (whether on the Internet or in any other communication to the public) any trade name, business name, logotype or trademark owned by the other party or any affiliate of the other party unless it has received written approval by an authorized representative of the other party.
13.1 This Agreement is personal to the Customer and Customer shall not assign, transfer, subcontract, delegate and deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of APTW.
13.2 APTW shall be entitled to assign this Agreement (in whole or in part) to an affiliate.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be delivered by post or sent by email to the address specified by each party from time to time.
16. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
17.2 If any provision or part-provision of this Agreement is deemed deleted the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. GOVERNING LAW
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by the laws of Sweden.
19.1 All disputes or claims arising out of or in connection with the present Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be finally settled in accordance with the Arbitration Rules of the Stockholm Chamber of Commerce. All communications and proceedings shall be held in the English language. The place of arbitration being Malmoe (Sw. Malmö).
19.2 All statements made and documents provided or exchanged in connection with the arbitration procedure shall be confidential and neither party shall disclose the existence or content of the dispute or claim or the results of any arbitration award to any third party, except with the written consent of the other party or pursuant to a requirement by law or a court order.
19.3 Nothing in this Section 19 shall deprive APTW of its right to apply to any court in any jurisdiction for an extra-arbitral injunction in order to protect its intellectual property rights or collect due and undisputed payments. Such rights are expressly reserved.