1.1. "Service” means the software provided by Supplier and identified in the attached Service Description (Schedule 1).
1.2. “End-users” shall mean the visitors of the Customer’s webpage(s), who uses the Service.
1.3. “Customer Data” shall mean the material containing the data upon which the Service shall be customized.
1.4. “Derivative Data” shall mean the aggregated data, which is accumulated by the End-Users use of the Service.
1.5. “Developments” shall mean any improvement to the Service.
1.6. “Personal Data” shall mean any data identifiable to a natural person that is in the control of any Party.
1.7. “Default” shall mean any breach of the obligations, including delays and defects under the Agreement or any act, omission, negligence or statement of a Party or the employees or agents of a Party in connection with or in relation to the subject matter of the Agreement.
1.8. “Documentation” means all documents, records, written material and other copies whether in physical or electronic form, specifications and technical manuals documenting the Software or any deliverables prepared or delivered in the course of or related to the Software.
2. Scope of Service
2.1. The Service is developed by the Supplier and will be adapted to the specific needs of the Customer in accordance with the provided Customer Data.
2.2. Supplier grants Customer a limited, non-transferable, non-exclusive and non-perpetual right to install and to make the Service available to the Customer’s End-Users on the webpage(s) to be decided by Customer in accordance with these Terms.
2.3. Customer gains access to the acquired Service by the installation of the Service on the webpage(s) to be decided by Customer.
2.4. Upon signing the Agreement, the Customer gives a general consent for the supplier to engage a third party service provider to use, host, operate and/or maintain the Service. The Supplier shall not be liable for any breach of these Terms by its third party service providers and shall not be liable for damages, unless such breach is a direct consequence of the instructions of the Supplier.
3.1. The Customer shall without undue delay and no later than two (2) days from knowledge of the default give written notice to the Supplier of any Defaults of the Service and a description hereof.
3.2. If the default is material, hereby meaning the Service cannot function as agreed, the Supplier has a right to remediate the Defaults itself as soon as possible.
3.3. If the default is not deemed material, the remediation of the default can by the choice of Supplier be done in the next updated release of the Service.
4. Intellectual property rights, ownership of the service and developments
4.1. The Customer acknowledges and accepts that the Service and the Documentation and any Derivative Data are protected under Danish intellectual property right laws as well as under international legislation, conventions and treaties.
4.2. Customer and Supplier agree that Supplier owns all intellectual property rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Service and Derivative Data and any corrections, bug fixes, enhancements, updates or other modifications.
4.3. Customer will promptly report to Supplier in writing any ongoing or threatening infringement of Supplier’s intellectual property rights in and to the Software, the Documentation and/or any other services, materials or information (if any) pertaining to the Software that comes to the attention of Customer.
4.4. Customer acknowledges and accepts that the Service, the Documentation and any other inherited services, materials and information (if any) pertaining to the Service regardless of the form or media in which the original or copy hereof may exist, are the sole and exclusive property of Supplier.
4.5. All Developments to the Service generated on basis of the Derivative Data and the Customer Data during the term of this Agreement shall be the exclusive property of the Supplier. The Customer is not allowed to sublicense, copy, alter, or develop on the provided Service.
5. Ownership of the data
5.1. All Customers’ Data is the sole and exclusive property of the Customer. In the event of termination of this Agreement, Customer shall remain ownership of Customer’s Data.
5.2. The Software is designed to improve and develop its performance to suit the Customer’s need based on the End-Users’ use of the Service. Any such Derivative Data generated from the End-Users’ use and from the Customer Data shall be the exclusive property of Supplier and the Supplier shall be entitled to use such Derivative Data to continue its development of the Service.
5.3. Supplier grants Customer right to access and use Derivative Data. In the event of termination or expiration of this Agreement, Customer remain the right to use Derivative Data and can make a full export of Derivative Data within thirty (30) days.
6. Data Protection
6.1. The Supplier will comply with all of its obligations under applicable data protection law.
6.2. The Supplier will process Personal Data on behalf of the Customer concerning the End-Users of the webpage(s) to be decided by Customer for the purpose of delivering a useful service to the Customer and the End-users.
6.3. Supplier will use sub-data processors in accordance with applicable Data Protection Law. Any sub-data processor will only process any Personal data in accordance with Supplier’s instructions as stipulated in a written data processing agreement. The Customer can at all time ask for a list of the current third party supplier, who has access to the Personal Data.
6.4. The Supplier will take all appropriate technical and organisational measures to ensure an adequate level of security and that processing of the Personal Data is done in accordance with applicable data protection law.
6.5. Upon termination of the Agreement in accordance with clauses 15 and 16 hereof, the Supplier will delete the Personal Data or return the Personal Data to the Customer.
7.1. The fee for the Service (hereafter referred to as the ‘Service Fee’) shall be paid in accordance with what stated in the pricing plan chosen.
7.2. The Customer cannot set-off an unpaid fee with any other claim obtained against the Supplier.
8. Audit right
8.1. Supplier will have the right to conduct an audit to verify the Customer's compliance with these Terms with seven (7) working days’ notice. Supplier will have a right to execute audit software on the Customer's environments, however, subject to compliance with the Customer's security instructions. The Customer will provide any assistance reasonably requested by the Supplier to ensure effective performance of the audit.
8.2. The Supplier will share the audit result with the Customer. In the event the audit result finds that the Customer is in breach under these Terms, the Customer will immediately remedy any breach and/or purchase the support and maintenance necessary to be compliant.
9.1. The rights or obligations hereunder shall not be assignable or otherwise transferable (in whole or in part) by Customer without the prior written consent of Supplier.
9.2. Supplier shall be entitled to assign the Agreement (in whole or in part) to a third party as part of bona fide sale of Supplier’s business or reorganisation or restructuring of Supplier’s business, without Customer's consent.
10.1. Both Parties shall keep in strict confidence any and all oral, electronic or written information, including know-how, which the Parties may gain access to as a result of the provision of Service under this Agreement and which is either marked “Confidential” or designated to be confidential prior to disclosure if provided orally.
10.2. The supplier only grants access to the personal data of the Customer to persons bound by confidentiality obligations, who act under its authority.
11. Limited warranty
11.1. Supplier undertakes no warranties and make no representations of whatsoever nature and Supplier disclaims and excludes to the maximum extent permitted by applicable law any and all representations, warranties and conditions (whether expressed or implied) including without limitation representations, warranties or conditions concerning non-infringement, satisfactory quality, merchantability, and/or fitness for a particular purpose with respect to the Software and/or the Documentation.
11.2. Under no circumstances shall Supplier be responsible for any non-compliance attributed in whole or in part to Customer's misuse, abuse, changes, modifications, updates, alterations, repair or enhancements to the Product and/or the Documentation performed by Customer or any third party.
12. Limitation of liability
12.1. Supplier expressly disclaims and excludes any and all liability for any indirect, special, punitive, incidental or consequential loss or damages, including without limitation (i) loss of profit including expected profits, (ii) loss or destruction of data and/or their restoration, (iii) loss of goodwill or business, (iv) loss of contracts, (v) loss of interest, and (vi) any other consequential losses or damages. The aforesaid limitations and exclusions shall apply irrespective of whether Supplier has been notified of the possibility of such loss or damages, and whether such loss or damages can be attributed to Supplier as negligent (including both simple and gross negligence).
12.2. Notwithstanding anything to the contrary the total aggregate amount that Supplier may be liable to pay to Customer in direct damages, costs etc. under these terms shall not exceed the total amount of all fees paid or payable to Supplier by Customer in accordance with this section 7.
13.1. In the event that the Software and/or the Documentation is, or in Supplier’s opinion is likely to be, held to be infringing any third party’s intellectual property rights, Supplier will in Supplier’s sole discretion either (i) replace the Software and/or the Documentation (or any portions hereof) with non-infringing equivalent functionality or information, (ii) modify the Software and/or the Documentation to make such non-infringing or (iii) if replacement or modification of the Software and/or the Documentation is deemed by Supplier in Supplier’s sole discretion to be unreasonably expensive, terminate these Terms with immediate effect against a refund to Customer of any licence fees paid by Customer prior to termination, however less a proportionate reduction based on the usage of the Software and/or the Documentation enjoyed by Supplier prior to termination.
13.2. The aforesaid constitutes the entire obligation of Supplier and the sole and exclusive remedy of Customer in the event that the Software and/or the Documentation is or in Supplier’s opinion is likely to be held to be infringing any third party’s intellectual property rights.
13.3. The Customer will hold the Supplier indemnified for any claims or losses which the Supplier may incur due to the End-Users violation of applicable law in the use of the Service.
14.1. These Terms shall remain in force until expiration set forth in this Schedule 2 or terminated in accordance with this section 15 or 16.
15. Terminationfor default
15.1. A Party may at any time by notice in writing terminate this Agreement fully or partly as of the date specified in such notice if the other Party is in material Default of this Agreement, provided that the defaulting Party has failed to remedy the material Default without undue delay, or if the material Default is not capable of remediation the defaulting Party has taken reasonable actions, if applicable, to prevent such material default to recur.
16. Customer's obligation upon termination
16.1 In the event of the Customer's use of the Service is terminated by any reason, the Customer is obliged to within seven (7) days to delete, remove and/or destroy the Service and all copies of the Service, and Documentation, and any other software related to the Service in the Customer's environments and systems. Upon the Supplier’s request the Customer will without undue delay document that the Software, copies hereof and Documentation etc. are no longer accessible or usable. The Supplier can require that such documentation is provided by an independent accountant.
17. Choice of Law
17.1. The Parties agree that these Terms shall be governed and construed by the laws of Denmark.
17.2. Any dispute arising out of or in connection with this contract, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration administered by The Danish Institute of Arbitration in accordance with the rules of simplified arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The place of arbitration shall be Copenhagen, Denmark.