1. SCOPE OF THE TERMS AND CONDITIONS
1.1 These terms and conditions (the "Terms") shall apply to all purchases of Link Essentials SaaS with add-ons ("Link Essentials") as agreed between Bizbrains A/S, CVR no. 33510837, Havneparken 1, st., 7100 Vejle (the "Supplier") and you (the "Customer") (collectively referred to as the "Parties" and separately as a "Party"). The Customer agrees that any access, use or attempt thereof shall be made in accordance with the Terms. These Terms are entered into with the Customer's accept of the Quote for Link essentials (the "Quote").
1.2 The Terms and the data processing agreement set out the terms and conditions according to which the Customer is granted a use right to Link Essentials and to acquire assistance (support etc.) related thereto from the Supplier. In the event of any inconsistency between the Terms and the data processing agreement, entered into between the Parties, the data processing agreement will prevail regarding any processing of personal data.
2.1 The Supplier shall provide Link Essentials in accordance with these Terms. The Supplier provides the Customer with Link Essentials which is made available for the Customer as a Software-as-a-Service and as a standard service, subject to the Quote. The Supplier has the discretion to engage subcontractors for fulfilling its obligations as outlined in these Terms, while remaining responsible for the deliveries.
2.2 The Customer can order limited assistance from the Supplier ("Assistance Services"). Such assistance include tasks and assignments such as (but not limited to), migration or assistance in relation to Link Essentials and as agreed between the Parties. Assistance will be subject to these Terms unless the Parties have entered into a separate agreement for the Supplier's delivery of Assistance Services.
3. RIGHT OF USE FOR LINK ESSENTIALS AND ASSISTANCE
3.1 The Customer acknowledges and agrees that the Supplier and its licensors own all intellectual property rights to Link Essentials and its components. However, the Customer retains all rights to data inputted directly by the Customer on the Customer's behalf for the purpose of using Link Essentials (the "Customer Data").
3.2 The Supplier grants to the Customer a non-transferable, non-exclusive, revocable and time-bound license to use Link Essentials subject to these Terms and the Customer's payment of all applicable fees under these Terms. The Customer may not decompile, modify, reverse engineer, or create derivative works of Link Essential, or otherwise attempt to discover the source code.
3.3 The Customer agrees not to transfer, sublicense, lease, lend, or in any other way make available the Link Essentials in whole or in part to any third-party.
3.4 The Supplier retains all intellectual rights and is entitled to use any materials and/or sub-elements of Assistance Services (if any) in other contexts, the knowhow generated in connection with the performance of the Assistance Services, programming knowledge etc.
3.5 The Customer is responsible for ensuring that the Customer has all necessary rights, including rights to third-party software and other material to which a third party holds rights, to enable the Supplier to perform the work without this resulting in an infringement of third-party rights.
4.1 The prices are specified in the Quote, and all fees are exclusive of VAT and other applicable taxes which shall be paid by the Customer. The Supplier is entitled to invoice the Customer monthly in advance for the fees set out in the Quote and for any subsequent add-ons ordered by the Customer such as additional documents per month or additional active partners.
4.2 The fees for the Assistance Services shall be based on time and material. The Supplier's hourly rate varies depending on the service provided and is based on the current list prices set out in section 4.7. The Assistance Services are invoiced by the Supplier after the performance of work or according to separate agreements.
4.3 All invoices issued by the Supplier shall be paid within thirty (30) days from the date of the invoice. If an invoice becomes overdue, the Supplier is entitled to charge interest at a rate pursuant to the Danish Interest Act.
4.4 If a payment is not performed by the Customer, it is considered a material breach, provided that the Supplier has sent at least one notice requesting payment, allowing the Customer at least ten (10) working days to remedy the breach, i.e., to affect the payment. If the Customer does not perform payment, the Supplier is entitled to suspend Link Essentials, until payment is made, and will be entitled to commence ordinary collection procedures against the Customer in order to collect the outstanding payment.
4.5 Payments already made are not refundable, except for the situations set out in Clause 6.2.
4.6 The Supplier has the right to change the fees or other applicable charges. In cases of increase, the Supplier shall provide a three (3) months' written notice to the Customer.
4.7 List Prices for Assistance Services for Link Essentials
Support - 1st & 2nd level
5.1 Link Essentials is provided "as is", and the Supplier disclaims all warranties and conditions regarding Link Essentials either express or implied, including without limitation warranties and conditions of title and non-infringement of the rights of third parties and implied warranties or conditions of merchantability and fitness for a particular purpose. The Supplier does not warrant that Link Essential will always be accessible, uninterrupted, timely, secure, accurate, complete or error-free, nor does the Supplier warrants any connection to or transmission from the internet or other types of connections between computers or other electric or electronic equipment. For the avoidance of doubt, the Customer is aware of and accepts that planned, as well as unplanned, downtime can occur and that the Supplier does not guarantee a specific uptime, operational stability, response time, or performance.
5.1.1 In the event of any loss or damage to any of the Customer Data uploaded to Link Essentials, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial efforts to restore the lost or damaged data from the latest backup if such backup exists.
5.1.2 The Customer is responsible for using Link Essentials, and the Customer agrees to defend, indemnify and hold the Supplier harmless against all third-party claims, actions, proceedings, losses, damages, fines, penalties, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of Link Essentials or and/or any results arising out of the Assistance Services delivered by the Supplier.
5.1.3 The Supplier is in no circumstances liable for any operational loss, loss of profit, loss of data or its recovery, loss caused by IT virus, loss of goodwill or other indirect loss or consequential damage. The Supplier is not liable for any error or defect which does not relate to Link Essentials or delivered Assistance Services or any integrations between Link Essentials and the Customer's existing hardware and software.
5.1.4 The aggregate liability of the Supplier arising under or in connection with the Terms or the Quote whether in tort, contract, by misrepresentation, restitution or otherwise shall be limited to an amount corresponding to the fees paid by the Customer during the last twelve (12) months prior to the event leading to the liability. However, in no event can the Supplier's liability exceed DKK 500,000.00.
6. THIRD-PARTY RIGHTS
6.1 The Supplier represents that to the Supplier's knowledge Link Essentials do not infringe any third-party rights. If an infringement claim is made against the Customer, the Customer must give the Supplier prompt notice. The Supplier will then join the case and pay the costs involved, and the Supplier will have an irrevocable authority to appear as defendant at its own expense or to settle the dispute concerning the alleged infringements.
6.2 If any third-party rights turn out to prevent use of Link Essentials, the Supplier is entitled at its own discretion to either (i) obtain a right for the Customer to continue use of Link Essentials, (ii) terminate the infringement by changing or replacing Link Essentials by another product, which materially has the same functionality, or (iii) cancel these Terms against repayment of any consideration paid for the forthcoming payment period of Link Essentials.
6.3 In addition to the remedies for breach of contract described in this clause, the Customer has no remedies or claims, including claims in damages, in the event that Link Essentials infringes third-party intellectual property rights. The Customer thereby waives any further claim against the Supplier.
7. PERSONAL DATA
7.1 The Supplier's processing of personal data on behalf of the Customer will be subject to the data processing agreement referred to in the Quote.
8. TERM AND TERMINATION
8.1 These Terms shall commence on the date on which the Customer have accepted the Quote.
8.2 The Quote, including these Terms, remain effective until terminated by either Party. Either Party can terminate the Quote with a three (3) months' prior written notice.
8.3 In the event of termination, the Customer shall cease to use Link Essentials at the end of the notice period. All Customer Data stored in Link Essentials will be deleted by the end of the notice period. The Customer is sole responsible for any backup, transfer etc. of Customer Data before the deletion, unless otherwise is specifically and in writing agreed between the Parties.
9.1 The Supplier is entitled without prior notice to block the Customer's access to Link Essential if the Customer materially breaches these Terms. E.g. the following circumstances are considered to be material breach:
• Using Link Essentials for illegal purposes.
• Using Link Essentials for acts or purposes that infringe third-party rights.
• Transmitting or distributing spam (unsolicited electronic marketing) or contributing thereto.
• Propagating viruses or other harmful code.
• Non-payment, as further described in Clause 4.4.
• Disregard of the Supplier's intellectual property rights.
• Disregard of the agreed license.
9.2 If one of the Parties defaults on its payments, undergoes formal restructuring proceedings, is declared bankrupt, goes into liquidation or is otherwise unable to pay its debt, the other Party may terminate the agreement immediately if the affected Party fails to provide adequate security for contractual performance or any estate uses its statutory right to accede to the agreement.
10. FORCE MAJEURE
10.1 Neither Party will be liable in damages for non-fulfilment of its obligations if the Party can prove that such non- fulfilment is due to circumstances beyond its control, and that the Party could not be expected, on or after accepting of the Quote, to have foreseen, avoided, or overcome such circumstances or their consequences.
10.2 Force majeure includes (without limitation) war, civil war, riot, public restrictions, regulatory orders, import or export prohibition or other public intervention, natural disasters, vandalism, theft, failing energy supply, breakdown of communication lines, seizure of funds, disease outbreak, pandemics or any other extraordinary event beyond the Party's reasonable control.
10.3 In the event of force majeure, the Party's obligations will be suspended until the time when the Party is again able to perform its obligations.
11.1 All information received by a Party about the other Party in connection with the negotiations for and conclusion of these Terms and the Quote must be treated as confidential indefinitely and may not be used other than as provided in these Terms or disclosed to any third party, for whatever purpose, without the other Party's consent, unless the information:
a) is or becomes available to the public other than as a result of disclosure contrary to this obligation;
b) can be positively demonstrated to have been received by a Party from a third-party who is lawfully in possession of and entitled to disclose the information;
c) by the provisions of these Terms is allowed and/or intended to be disclosed to a third party or is required to be disclosed in order for the Party to comply with current legislation or other rules and regulations (including but not limited to any disclosure obligations imposed by a stock exchange), or to satisfy a specific court order; or
d) is disclosed to the Party's accountant, legal advisor or others who are required by law to keep the information confidential.
12.1 Any rights granted to the Customer are solely granted to the Customer and shall, therefore, not be considered as granted to any subsidiary or holding company of the Customer, unless otherwise is agreed in writing between the Parties. The Customer may not assign its rights or obligations under the Quote and the Terms in whole or in part to any third-party without the prior written consent of the Supplier.
12.2 The Supplier may assign its rights or obligations under this Agreement in whole or in part to any third-party without the prior written consent of the Customer.
13.1 The Supplier may change these Terms from time to time. The current version of the Terms will at all times be available on the Supplier's website, at http://www.bizbrains.com . The Supplier will notify the Customer directly of all material changes with a reasonable notice (in no event less than one (1) month). If such material changes have material adverse effects for the Customer, the Customer will have thirty (30) calendar days from the notification date to object to the change in writing to the Supplier. The Customer's objection must be well-founded. Such objection will entitle the Customer to terminate the Quote with effect from the date of the material changes. Absence of any objections from the Customer shall be deemed a consent to the change.
12. GOVERNING LAW AND VENUE
14.1 Any dispute or disagreement arising directly or indirectly out of these Terms, or the interpretation of these Terms, is to be settled by the City Court in Aarhus in accordance with Danish law, excluding Danish conflicts of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).