By using the Service the Customer accepts the following Terms and Conditions of Use of Scanning Solution (SaaS)
1. SERVICE AND SUPPORT
1.1 Subject to the Customer paying all Fees payable to the Company, the Company shall make the Service available to the Customer in accordance with the Service Levels described in Appendix 1 and in accordance with the terms and conditions of this Agreement. The service is made available to the Customer’s use on a non-exclusive and transferable (as detailed in this Agreement) basis.
1.2 The Customer may assign the right to use the Service to a third party (“Third Party”) on condition that; (i) all Third Parties comply with all the terms and conditions of this Agreement; (ii) that the Customer pays all Fees for all Third Parties’ use of the Service under this Agreement; and (iii) the Customer will hold the Company harmless, and is responsible for all its Third Parties and is jointly and severally liable in reference to any breach by a Third Party. It is expressly agreed that the Third Parties may never obtain better rights than the Customer’s right, regardless of what the Customer and the Third Parties may internally agree.
1.3 The Company will provide technical support to the Customer in accordance with the provisions in Appendix 2.
2. LIMITATIONS AND OBLIGATIONS
2.1 The Customer may not, directly or indirectly, make reverse engineering, disassemble or otherwise attempt to derive or discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to or relating to the Service, or any software, documentation or data relevant to or relating to the Service (collectively: the “Software”); or use the Software or the Service to the detriment of the Company or the Company’s affiliated companies.
2.2 The Company guarantees and warrants that the Service complies with applicable law. The Customer guarantees and warrants that the Customer and any Third Party solely use the Service in accordance with applicable laws and regulations, including the Data Protection Act.
2.3 The Company reserves the right to (but is not obliged to) monitor the Customers and any Third Party’s use of the Service. The Company reserves the right to refuse or suspend access to the Service if the Company has reasonable cause to believe that the Customer’s or a Third Party’s use of the Service is in violation of the law or is unjustifiable under this Agreement.
2.4 The Customer is responsible for making backups, etc. of all Customer Data (defined below) and the Company is not obliged to do so.
2.5 The Customer is responsible for having and maintaining all equipment and related services that are necessary to connect, access or otherwise use the Service, including but not limited to hardware, servers, software, operating systems, networks, applications, API, Internet connection, telephone connection, power supply and the like (collectively: “Equipment”). The customer is also responsible for upholding security in relation to the Equipment, including access codes, etc.
3.1 The parties will, or may, each (as “Information Recipients”) receive or access information about the other party (as “Information Provider”) which is of a confidential, business related, economic, proprietary, non-public or personal nature (collectively: “Confidential Material”). Confidential Material also includes the data that the Customer provides to the Company in order to enable the delivery of the Service (collectively: “Customer Data”). The Information Recipient must treat all Confidential Material as and keep all Confidential Material strictly confidential and must not disclose, copy, distribute or transmit, directly or indirectly, wholly or in part, this to any person (neither physical nor legal) without the prior written consent of the Information Provider. Regardless of the preceding sentence, however, the Information Recipient may disclose, copy, distribute or transmit Confidential Material, (i) provided that the Information Recipient is legally required by a Danish court or a Danish authority to provide or disclose Confidential Material, however, in such cases, the Information Recipient shall, if possible, inform the Information Provider of this.
3.2 The Information Recipient is unauthorized to in any way and at any time exploit, misuse or take advantage of Confidential Material to damage or harm the Information Provider or its affiliates.
3.3 The Information Recipient must at the request of the Information Provider, return all Confidential Material without retaining copies thereof. At the Customer’s request, the Company must delete all data entered by the Customer on either all of the Customer’s customers or on some of the Customer’s selected customers.
3.4 The confidentiality obligation is irreversible and irrevocable on the part of the Information Recipient and shall continue to be in force after withdrawal from, termination or expiration of this Agreement until the Confidential Material in question becomes publicly available.
4. PROPERTY RIGHTS
4.1 The Customer owns and retains the full ownership of all Customer Data.
4.2 The Company owns and retains full ownership of; (a) the Service and the Software; (b) any enhancements and modifications thereto; (c) software, applications, APIs, inventions or other technologies developed in connection with the Implementation Service, support or other services and supplies, etc. delivered to the Customer; and (d) all intellectual property rights relating to all of the items mentioned in sub-paragraphs (a) – (d).
4.3 Notwithstanding the other provisions of this Agreement, the Company, subject to applicable law, including the Data Protection Act, shall be instructed to collect and use data from the Customer, including Customer Data and data derived from Customer Data, e.g. in an anonymized form, to optimize and improve the Service and the systems related to the Service, including APIs, and for correction, diagnosis and development in relation to the Service and the systems related to the Service.
5. DATA PROCESSING AGREEMENT
5.1 The parties agree to the enclosed data processing agreement, which is a part of this Agreement and is applicable to the Company’s processing of personal data on behalf of the Customer or Customer’s customers.
6.1 As a payment for the Customer’s use of, and the right to use the Service and the rights, etc., which are attributable to the Customer under this Agreement, the Customer must pay the fee (“Fee”) stated in the Order Form (incl. in Appendix A thereto), and which forms an integral part of this Agreement. The tax will be wholly or partly consumption-based as specified in the Order Form (incl. in Appendix A thereto). The Fee is settled monthly in arrears. The Company sends, together with its invoice, a statement of the calculation of the Fee based on the actual consumption, etc. during the preceding month. The Fee must be paid no later than 7 days after the Customer’s receipt of an invoice from the Company. All prices quoted in this Agreement are quoted without VAT, and the Customer is obliged to pay any VAT in addition to all prices quoted, etc. The Company is entitled to change the Fees and prices with 3 months written notice to the end of a month. If the Customer or a Third Party continues to use the Service after a new Fee or price is notified within a reasonable time, this is interpreted as the Customer’s tacit acceptance of the new Fee(s) or price(s).
7. TERMINATION ETC.
7.1 The parties may each at any time terminate the Agreement with at least 3 months’ written notice at the end of a calendar month.
7.2 The parties may each at any time terminate the Agreement, if the other party significantly breaches the Agreement, provided that the breaching party has not remedied the breach within 20 days of receipt of written notice, however, at least 10 days of prior written notice may be given if the breach is based on non- payment. The written notice must describe the breach and clearly state that lack of remediation will result in the termination of the Agreement.
7.3 All provisions, which by their very nature must remain in force after termination/withdrawal, shall remain in force after any termination/withdrawal, incl. the following provisions: this paragraph 7.3 and paragraph 2.1, paragraph 3, paragraph 4, paragraph 10 and paragraph 11.
8. WARRANTY AND DISCLAIMER
8.1 The Company shall, in accordance with general industry standards, make reasonable efforts to maintain the Service in a manner that minimizes errors and disruptions and shall perform any deployment services in a professional manner. The service may be temporarily unavailable for scheduled maintenance or urgent or unplanned emergency maintenance, or due to other circumstances beyond the control of the Company. The Company will give notice by e-mail in advance in connection with planned disruptions in the Service or scheduled downtime. Regardless of the foregoing, the Company makes no guarantee that the Service always works without interruption or is error-free, and the Service is provided with all faults. Customer acknowledges that computer and telecommunication systems, including API, are not error-free and occasional downtime may occur. In addition, the Company makes no guarantee in relation to the Customer Data that the Customer transmits to the Company and which, after processing, the Company transmits back to the Customer.
9.1 During the term of the Agreement, the Company shall indemnify the Customer for liability to third parties as a result of the Service failing to comply with applicable law or infringing on the rights of third parties in the EU as settled in a final judgment of a court within the EU. However, the prior indemnity shall not apply in relation to parts or components of the Service, (i) wholly or partially developed in accordance with the Customer’s specifications, (ii) which are modified by the Customer after delivery by the Company, (iii) which the Customer combined with other products, technologies, or processes not provided by Bilagscan, and where the liability arises from the other products, technology, processes or combinations (iv) where the Customer continues the infringing behavior after being notified of the infringement or notified that changes or updates may avoid infringement/violation, or (v) where the Customer’s use of the Service is not in accordance with the terms and conditions of this Agreement, including if the Customer fails to pay the Fees in time or if the Customer’s use of the Service is in violation of applicable law.
10. LIMITATIONS OF LIABILITY
10.1 Access to the Company’s software is continually being developed, which is why the Company reserves the right to shut down the software in the event that the software does not meet the Company’s standard.
10.2 Each party shall not be liable to the other party or to any third party for any indirect loss or collateral damage or direct or indirect consequential loss, loss of profit, loss in interest and loss of savings.
10.3 A party’s total liability under this Agreement or for matters relating to or arising from this Agreement or of the Service, the Implementation Service, or the use of the Service by any party or any third party is limited to an amount equal to the total amount (excl. VAT) which the Customer has paid to the Company in the past 12 months immediately before the claim arose the claim arose. This limitation of liability does not apply to indemnifications following paragraph 9 or breach of the data processing agreement, including security breaches and loss of data.
11. GENERAL PROVISIONS
11.1 All notices, messages etc. to the Customer under this Agreement may in full discharge given by e-mail to the e-mail address provided by the Customer.
11.2 This Agreement is governed by and construed in accordance with Danish law. Any dispute that may be relevant to or arise from this Agreement or from the use of the Service by a party or a third party is subject to the exclusive jurisdiction of the Danish courts and must be brought before the Copenhagen City Court in the first instance.
ANNEX 1: SERVICE LEVELS
The Service must be available 99.00% measured on a calendar month basis regardless of the day of the week. Downtime due to power outages, interruptions in communication connections and Internet connections or other utilities or due to other reasons outside the Company’s control will not be included in the calculation of the Service Levels.
APPENDIX 2: SUPPORT
In case of breakdown or critical need for support, the Company has 24 hours response time to either email or contact by telephone. In case of non-critical errors, the Company must be contacted on the following e-mail addresses: email@example.com or firstname.lastname@example.org. In case of critical errors or breakdowns, the Company can be contacted on the following telephone numbers: +45 31 32 33 55 and +45 51 95 75 15 via call 24 hours a day, year-round. Telephone numbers and e-mails can be changed but require written notification to the Customer.