Subscription terms for online access to SaaS services

June 2018.

SEE: Data Processor Agreement

SECTION I – SUBSCRIPTION TERMS 

1. General terms

These subscription terms are entered into by accepting the terms in connection with the customer's order or by using the agreed Software as a Service ("Service"), and they apply between the customer ("the Customer") and Xena ApS ("the Supplier").

Regardless of whether the Service is accessed as a "free user" or not, these terms apply in their entirety.

From the order date (the Start-Up Date), the Supplier must provide the agreed SaaS service by making the standardised and internet-based software available to the Customer (the Service).

The subscription terms comprise two sections.

Section I contains the terms that apply to the agreed Service.

Section II contains a description of and terms for the Supplier's Support and software maintenance (Ongoing Services). The terms set out in Section I also apply to Ongoing Services.

 

2. The agreed Service

In accordance with these Terms, the Customer obtains the right to use the agreed Service, which is made available online as Software as a Service. The Customer obtains no copyright or title to the agreed Service and no licence to execute or use the agreed Service except as Software as a Service.

The Customer's subscription allows the Customer to use the agreed Service for the number of users for whom licences have been ordered. If the Customer requires additional users, the relevant number of licences must be ordered, and the Customer accepts that the price will increase accordingly.

The Supplier is entitled to perform updates and improvements to the agreed Service on a regular basis. The Supplier is also entitled to change the composition and structure of the agreed Service. Such updates, improvements and changes may be performed with or without notice and may affect the agreed Service, including information and data uploaded to or provided by the agreed Service.

This Agreement also governs the Customer's use of the Supplier's services through which the Customer may obtain a licence for Applications.

 

3. Additional purchases of applications developed by the Supplier or Third Parties

In the App Store of the agreed Service, the Customer may purchase Applications that integrate with the Service. These Applications are developed either by the Supplier or by Third Parties.

Licences for Applications developed by EG are subject to these Terms. Licences for Applications developed by Third Parties are granted by the relevant Third Party. The Customer must read and understand any separate licence terms for Applications developed by Third Parties. The developer of each Application will be displayed.

For Applications developed by Third Parties, the licence terms and data processor agreement will also be displayed before an Application is purchased. The Customer must accept the licence terms and data processor agreement before purchase.

The Supplier is not party to the purchase agreement or end user agreement on purchase of Applications developed by Third Parties. The Third Party and the Customer are the only parties to such an agreement. The Supplier makes no guarantees as to Applications developed by Third Parties. For further details on this, please refer to section 13 Liability and limitation of liability.

The download and use of Applications may be subject to payment, regardless of whether such Applications are developed by the Supplier or by a Third Party. Payment is made separately from this Agreement. For each Application, it will be displayed whether its download and use is subject to separate payment from the Customer. Payment is made through the Customer's subscription with the Supplier. The total purchase of the Service and any additional purchases will be specified in the Customer's account.

The Service integrates with the Applications in order to create the best version of the Service for the Customer. Consequently, the Supplier has a time-unlimited, irrevocable and unrestricted right to use all data generated through the Third-Party Application and the Customer's use of the Service and the Applications via the Service. However, this does not apply to personal data, which will only be processed in accordance with the applicable data processor agreement.

If personal data is transmitted between the Service and Third-Party Applications, the processing is governed by the data processor agreement between the Supplier and the Customer. The Customer must enter into a separate data processor agreement with the Third Party that governs the same transmission of personal data between Third-Party Applications and the Service.

The Supplier is not responsible for maintaining or supporting Applications developed by Third Parties.

 

4. Changes to the Terms

The Supplier is entitled to change these Terms in any respect. The current Terms will be available on the Supplier's website.

The Supplier will endeavour to provide reasonable notice (one month) of any changes by announcement on its website. Use of the agreed Service after any changes to these Terms constitutes an acceptance of such changed Terms. The Customer must keep up to date with any changes to these Terms.

 

5. The Customer's obligations

The Customer is responsible for establishing a connection between the Customer's equipment and the agreed connection point and for having the equipment and software required to use the Service and other parts of the agreed Service.

The Customer is responsible for becoming acquainted with the licence terms and data processor agreements for Applications developed by Third Parties. Such terms and agreements are presented to the Customer before an additional purchase is made. The Customer must accept them before the commencement of use.

The Customer accepts to pay all costs in connection with configuration and system changes necessitated by changes to the agreed Service.

The Customer must ensure that the agreed Service is not used in a way that may damage the Supplier's name, reputation or goodwill or is contrary to any relevant legislation or other regulations.

If data is exchanged directly or indirectly between the Supplier's and the Customer's IT systems in connection with the execution of the agreed Service, each party is responsible for protecting its IT system against any viruses, unauthorised access or unwanted intrusion.

The Service will be regularly maintained and updated, and this may impose stricter requirements on the Customer's hardware and software interaction. The Supplier assumes no responsibility for this.

 

6. Availability of the Service

The Supplier endeavours to provide high operational stability, but is not responsible for breakdowns or disruptions, including disruptions caused by factors beyond the Supplier's control. Such factors include power failures and failures in equipment, internet connections, telecommunication connections or similar.

In case of breakdowns or disruptions, the Supplier will endeavour to restore normal operation as quickly as possible.

The Supplier is not responsible for disruptions in the form of e.g. pop-ups, ad blockers, browser extensions and plug-ins.

The Supplier is entitled without incurring any liability to perform maintenance of the Service, even when this affects the availability/uptime of the Service, when such maintenance is performed for operational or security reasons.

The Supplier must endeavour to perform service and maintenance outside the hours of 8:00 a.m. to 5:00 p.m. on working days and must, wherever possible, notify the Customer within a reasonable time before service is performed.

 

7. Documentation and instructions

The agreed Service will not be documented.

 

8. Charges, prices and terms of payment

The subscription commences upon order placement (the Start-Up Date) and runs until terminated in accordance with these Terms.

The first invoicing period runs from the order date until the end of a month. After this period, the subscription is invoiced monthly in advance unless otherwise specifically agreed in connection with the Customer's acceptance of the agreement concerning the provision of the Service.

If the Customer chooses to pay by credit card, the payments are deducted directly from the payment card used by the Customer. If a payment cannot be made because the card has expired, has insufficient funds or for other reasons, the Supplier may, without notice and without incurring any liability, suspend the Customer's access to the Service until the agreed payment has been received. By using a payment card, the Customer authorises the Supplier to continue to invoice the Customer until the end of the termination period.

The Supplier may adjust the charge on an ongoing basis with 60 days' notice unless otherwise specifically agreed in connection with the Customer's acceptance of the agreement concerning the provision of the Service.

If payment is delayed, the Supplier is entitled to charge interest from the due date at the rate of 1.75 per cent per month. In addition, the Supplier is entitled to charge a fee for each reminder, whether verbal or in writing, or if a debt is placed for collection. Such fees will be based on the Supplier's fee policy as applicable from time to time.

In the event of a default in payment, the Supplier is further eligible to suspend access to the Service.

In the event of a default in payment, the Supplier reserves the right to terminate the Customer's access to the Service without further notice and without incurring any liability.

 

9. Responsibility for the Deliveries and complaints

The Supplier is not responsible for Applications developed by Third Parties and makes no guarantees in this respect.

The agreed Service is provided as is, and the Supplier disclaims all warranties, guarantees, undertakings, representations or other terms or conditions, whether direct or indirect.

The Service is neither fault-tolerant nor without flaws, conflicts or interruptions, and the Customer accepts that the Service may contain minor defects and inconveniences that do not significantly affect the use of the Service. The Supplier does not guarantee that such circumstances will be remedied, and in any case, remedy is usually deferred to an update of the Service.

The Customer must immediately report any defects to the Supplier. In all circumstances, the complaint must reach the Supplier no later than one month after the defect was or should have been identified.

Upon receipt of a written complaint from the Customer, the Supplier must, taking due account of the significance of the matter to the Customer's use of the agreed Service, remedy any defects at its own expense within a reasonable time.

The Supplier's duty to remedy defects depends on the Customer providing a complete written and dated report of the defect through the Supplier's support system and participating actively in the remedy process, including testing of the remedied defect without undue delay.

In the event that the Supplier does not remedy the defect and the Customer's use of the agreed Service is, in consequence, materially affected, the Customer is entitled to a pro rata reduction of the charge in accordance with the general rules of Danish law for a period of no more than 90 days from such time as the Supplier has received the Customer's complaint. The Customer has no other remedy for breach of contract for the period during which the defect affects the agreed Service.

If the Supplier does not meet its obligations as set out above, the Supplier is liable to pay damages with the limitations specified in these general terms.

In the event of a material breach, and if the breach is not remedied in accordance with the above, the Customer is entitled to terminate the agreement prospectively at the end of the stated period of 90 days.

The Supplier's responsibility for the Deliveries is limited to the above.

 

10. Breach of contract by the Customer

In the event that the Customer does not meet its obligations under the Agreement or if the Supplier in any other way incurs additional expenses or additional work due to matters for which the Customer is responsible, in full or in part, the Supplier is entitled to be indemnified in every respect. In such case, the Supplier is entitled to invoice time spent etc. to the extent that this is considered reasonable and with due respect to any additional time spent and resources used by the Supplier as a result of the Customer's negligence. These services will be invoiced according to the Supplier's current list prices.

If an invoice is not paid on time, access to the Service will be suspended until payment has been received. In such case, the Supplier is still entitled to payment of the Service charge during the suspension period.

In the event of a material breach by the Customer, the Supplier is entitled to terminate the Agreement without any separate claim of remedy.

 

11. Title and intellectual property rights

The Supplier retains the title, the intellectual property right, the right of disposal and any other rights to the Service and the software included in the Service.

During the term of the Agreement, the Customer is granted a non-exclusive, time-limited and non-transferable right to use the agreed Service. No intellectual property rights are assigned to the Customer. The Customer may not have a third party perform any kind of support or maintenance of the software included in the Service.

The access to use the agreed Service is exclusively granted to the Customer and its employees and to such external persons who process data for or provide other services to the Customer if their access to the Service is necessary for them to be able to provide these services. In this connection, the Customer warrants that any third parties will comply with the above.

Assigned login details must not be disclosed. As for material uploaded by the Customer and all Customer data, the Customer grants the Supplier sufficient permission and global licence to enable the Supplier to provide the agreed Service securely and without incurring any liability. The Customer warrants that the material uploaded does not infringe any third-party rights and does not contain material that may be offensive or is contrary to any relevant legislation or other regulations.

To the extent that the use of the agreed Service includes the use of Third-Party Software, the use thereof is subject to separate licence terms to be read, understood and observed by the Customer, cf. section 3.

If the use of the agreed Service infringes any third-party rights, the Supplier must ensure that sufficient rights for the Customer's continued use of the Service are obtained at no additional cost to the Customer or alternatively replace the parts of the Service that infringe third-party rights with another similar service of the same overall quality and with the same general functionality.

The Customer can make no further claims against the Supplier as a result of an infringement of third-party rights due to the Customer's use of the Service.

 

12. Ownership of data

The Customer retains all rights to its own data which the Customer loads into the Service. The Supplier only processes the Customer's data in accordance with instructions from the Customer and not for its own unauthorised purposes.

Data generated by the Supplier or generated automatically by the Service in connection with the performance of the Agreement, including the Customer's use or monitoring of the use of the Service, may only be used by the Supplier for the performance of the Service and the Agreement with the Customer and for statistical purposes when the information has been anonymised.

The Supplier has taken reasonable technical and organisational security measures to prevent that information is accidentally or illegally destroyed, forfeited or impaired and to ensure that such information is not communicated to unauthorised persons, misused or in any other way handled contrary to the Danish Act on Processing of Personal Data.

The Supplier will grant third parties and authorities access to the Customer's data in connection with court orders, regulatory requirements and the Customer's bankruptcy.

 

13. Liability and limitation of liability

The Customer is responsible for ensuring that all Customer data loaded into the Service is processed in accordance with the then-current legislation on the protection of personal data and other applicable legislation and that the data does not infringe any third-party rights. The Customer must indemnify the Supplier against any claims made against the Supplier as a result of the processing of the Customer's data in the Service.

The Supplier is not liable for any accidental, extraordinary or consequential damage resulting from the Agreement or the Customer's use of the agreed Service, including, but not limited to, operating losses, interruptions of business and/or operations, loss of data and costs related to its recovery (unless the loss of data is caused by the Supplier's failure to perform backup in accordance with the Agreement) or any other form of financial or indirect losses.

Under no circumstances can the Supplier become liable to pay total compensation and/or be required to grant a pro rata reduction that exceeds the Customer's total payment under the Agreement within the last 12 months.

The Supplier assumes product liability in accordance with current mandatory legislation on this subject. Beyond this, the Supplier assumes no product liability.

The Supplier's liability in all cases is limited to the amount paid by the Customer to the Supplier under the Agreement over the last 12 months before the tort occurred and in all cases to a maximum of DKK 1,000,000.

The Supplier assumes no responsibility for the Customer's use of Applications that are not developed and owned by the Supplier, including loss of data and other consequential damage resulting from the Customer's use of such Applications or from inappropriate use. The Applications are made available to the Customer as is, and the Customer is responsible for becoming acquainted with any supplementary licence terms and other terms of use that apply to the Applications in question.

 

14. Data processor agreement

If the Supplier processes personal data on behalf of the Customer when providing the agreed Service, such data will be processed under a separate data processor agreement entered into.

If a Third Party processes personal data on behalf of the Customer because the Customer has purchased additional Applications in the App Store, such data will be processed under a separate data processor agreement entered into between the Customer and the Third Party.

 

15. Insurance

The Supplier must maintain general and product liability insurance and professional liability insurance throughout the term of the Agreement. The minimum limit of cover for the product liability insurance is DKK 10,000,000, and the minimum limit of cover for the professional liability insurance is DKK 1,000,000.

 

16. Assignment of the Agreement and use of subsuppliers

The Supplier may assign its rights and obligations towards the Customer to group companies or third parties.

The Customer accepts that the Supplier may use subsuppliers for all aspects of the Agreement, including the execution and operation of the agreed Service, and for storing the Customer's data.

Any processing of the Customer's personal data by subsuppliers is governed by the data processor agreement on the use of sub-data processors.

 

17. Force majeure

Neither Party is liable for breach of its obligations under this Agreement if the breach is caused by circumstances which the Parties could not have foreseen when entering into the Agreement, including strikes and lockouts.

The Party claiming force majeure must without undue delay inform the other Party of the force majeure event and its expected duration.

Force majeure may only be claimed for the number of working days that the force majeure situation lasts. If the agreed Delivery is not performed due to force majeure, the related payments are similarly postponed. In connection with a force majeure situation in excess of 20 working days, the Party not claiming force majeure is entitled to cancel the Agreement as to any future services.

 

18. Changes to regulatory requirements

The Supplier must make changes to the Service resulting from new or changed regulatory procedures, legislation, etc. If this results in increased costs for the Supplier, the Supplier may demand reimbursement of such costs through an extraordinary adjustment of the charge with immediate effect.

 

19. Confidentiality

The Parties must observe the usual duty of confidentiality about information not generally known. This duty of confidentiality also applies after the termination of the Agreement for any reason. The Supplier may include the Customer in its list of references, but may not otherwise use the Customer's name for marketing purposes.

Notwithstanding this duty of confidentiality, the Supplier is entitled to disclose information if required by law or court order.

 

20. Termination

The Customer may terminate the subscription with one month's notice to the end of a calendar month.

The Supplier may terminate the subscription with six months' notice to the end of a calendar quarter or without notice in the event of the Customer's material breach of these Terms or the Customer's bankruptcy or insolvency.

 

21. Services provided upon termination

Upon termination of the Agreement for any reason, the Supplier must immediately and at the Customer's request assist in extracting the Customer's data from the Service and return it in electronic format to the Customer or a third party designated by the Customer.

The Supplier is entitled to payment for any assistance provided under this provision according to time spent and at the Supplier's usual hourly rate as set out in the current price list at the time of performing the work.

After returning the Customer's data and having received confirmation that the Customer has received the data, the Supplier is entitled to delete the Customer's data without undue delay. However, the Supplier reserves the right to delete the Customer's data 90 days after the termination of the subscription for any reason, and the Supplier is under no obligation to store data after this time.

 

22. Marketing

By accepting these Terms, the Customer explicitly consents to the Supplier and other companies of the EG group contacting the Customer by telephone, e-mail, text or multimedia message for marketing or product guidance purposes. The Customer has been informed that this consent can be withdrawn at any time by contacting the Supplier using the current contact information at www.xena.biz.

 

23. Disputes

This Agreement is subject to Danish law, and any disputes will be settled at the venue specified in the Supplier's articles of association.

 

SECTION II – ONGOING SERVICES

24. General terms

In addition to the subscription terms set out in Section I, the provisions of this Section II apply to the Supplier's provision of services related to the Support and Software Maintenance Agreement (Ongoing Services).

If the Customer requests assistance for tasks etc. not covered by Support and software maintenance, the Supplier's assistance in this respect will be invoiced separately according to time spent and at the Supplier's consultancy rates as applicable from time to time.

The Support and Software Maintenance Agreement is a mandatory part of the agreed Service and can thus not be terminated before the expiry/termination of the agreed Service.

 

25. Software included

The Customer receives an invoice with an overview of the software and program modules for which a Support and Software Maintenance Agreement has been entered into. A new Agreement will not be provided if new program modules developed by EG for software included in the agreed Service are purchased after the conclusion of this Agreement. Such program modules are thus automatically covered by these Terms.

Please note that the installation and maintenance of Third-Party Software, including browser updates and antivirus program installations and updates, are not covered by the Support and Software Maintenance Agreement unless this is specifically stated in the specifications on the Supplier's invoice.

 

26. Hotline

All enquiries to EG's Hotline can be made during EG's Hotline's opening hours. The Customer has been informed separately of the opening hours.

EG's Hotline will provide the Customer with a solution to any use-related problems that may arise in connection with the running of the programs covered by the Agreement as quickly as possible. If a solution cannot be provided to the Customer immediately, troubleshooting will continue during EG's hotline's opening hours.

EG's Hotline service does not include the performance of updates, instruction of new staff, recovery of defective files, directories and the like and questions regarding all functions in the system's development menu, including help in creating and customising reports and/or new menus and program functions.

The following list is only included to exemplify some of the services that are not covered by the fixed Hotline fee:

• Assistance for the report generator, design facilities, programming or other reorganisation of software covered by the Service
• Teaching/training of staff
• On-site assistance
• Instruction of new staff, recovery of defective files, directories and the like and questions regarding all functions in the development menu of software covered by the Service, including help in creating and customising reports and/or new menus and program functions
• Assistance related to faulty installation or failure to comply with technical specifications if the installation is not carried out in accordance with the Supplier's guidelines
• Assistance in connection with troubleshooting and enquiries regarding new tasks and ongoing projects.

If the Supplier has informed the Customer, based on the Customer's enquiry, that the issue is attributable to errors and defects in software, further handling of the issue will not be covered by the Hotline service.

 

27. Update agreement

The programs and program modules covered by the agreed Service are maintained by the Supplier on an ongoing basis in accordance with the Supplier's experience with the use of such programs and program modules. The resulting upgraded versions of the programs and program modules covered by the agreed Service are made available to the Customer on an ongoing basis as they are updated by the Supplier. In this connection, the Customer must install the latest versions, and the Customer is responsible for keeping its internet browser up to date in accordance with the Supplier's recommendations.

Any necessary extensions or changes to the Customer's own IT environments in connection with updates are effected at the Customer's expense and are of no concern to the Supplier.

In connection with the maintenance of programs and program modules, the Supplier is entitled without notice to remove functionality that the Supplier does not consider to be generally desirable among the Supplier's customers or that the Supplier wants to remove for other substantial reasons.

The update agreement does not cover updates of individual program changes in connection with the release of updated program versions unless a separate agreement to that effect has been entered into. The Supplier disclaims all liability for the compatibility or correct functioning of updated versions of the programs and program modules covered by the agreed Service with the Customer's other software and individual program changes.

Changes to standard forms and customised forms will be implemented without the prior consent of the Customer if required by changes in legislation. The Customer will be contacted before the update in the event of a conflict between such a change and the Customer's customised form.

Unless changes to forms are required by program updates or changes in legal requirements, the Customer will be invoiced for any changes to the original form at the Supplier's hourly rates for development work as applicable from time to time.

The Customer should be aware that failure to install new versions may prevent the installation of future versions. The Supplier is not responsible for such circumstances.