1. Subscription terms
These subscription terms are entered into by accepting the terms in connection with the customer's order or by using the agreed Service, and they apply between Xena ApS, CVR number 34080631 (hereinafter called "the Supplier"), and the customer (hereinafter called "the Customer").
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).
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 access to use the agreed Service is exclusively granted to the Customer and its employees, and the agreed Service may not be used for anyone other than the Customer or to process data or perform other services for anyone other than the Customer. The Customer vouches and is fully responsible for any third parties to whom the Customer grants access to the agreed Service or who use the Customer's login details.
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.
3. 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.
4. 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 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 takes no responsibility for this.
5. 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 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.
6. Documentation and instructions
The agreed Service will not be documented.
7. 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.
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. If the Customer chooses to receive invoices, the terms of payment are 8 days net. If payments are not made on time, the Customer's access to the Service will be suspended until payment has been received.
The Supplier may adjust the charge on an ongoing basis with 60 days' notice.
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.
8. Responsibility for the Deliveries and complaints
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.
9. 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.
In the event of a default in payment of more than 30 days, the Supplier is entitled to suspend access to the Service and other parts of the agreed Service until such time as the customer has settled any payments due to the Supplier. 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.
10. 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.
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 may be subject to separate licence terms to be observed by the Customer.
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.
11. 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 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 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.
12. Limitation of liability
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, interruption 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 1,000,000.00.
13. Data processing agreement
If the Supplier processes personal data belonging to the Customer when providing the agreed Service, the following provisions will apply.
According to current legislation on the processing of personal data, the Customer acts as a data controller and data processor whereas the Supplier acts as a data processor only. As a data controller, the Customer is responsible for all processing of personal data in accordance with the provisions set out in the Danish Act on Processing of Personal Data and other relevant legislation.
Compliance with current legislation on the protection of personal data entails and includes that the Customer must observe the provisions on the duty to disclose all relevant information and provide access to documents to the data subject, handle objections to the registration of personal data, delete incorrect information etc., obtain the necessary consents to the registration and processing of personal data and notify the Danish Data Protection Agency where necessary.
To the extent that the Supplier stores or processes Customer data in the performance of its obligations under this Agreement, the Supplier acts only on the instructions of the Customer. The Supplier must take the necessary technical and organisational security measures to prevent that personal data is accidentally or illegally destroyed, forfeited or impaired and to ensure that such data is not communicated to unauthorised persons, misused or in any other way handled contrary to the Danish Act on Processing of Personal Data. At the Customer's request, the Supplier must provide the Customer with sufficient information to enable the Customer to verify that the Supplier complies with the requirements regarding security measures.
The Supplier must be prepared to follow any decisions made by the Danish Data Protection Agency concerning measures to meet the safety requirements set out in the legislation on the protection of personal data. The Supplier must also allow any inspections required by the Danish Data Protection Agency in connection with the processing of personal data.
The Supplier may only transfer or in any other way move the Customer's data for storage or use outside the EU after obtaining specific approval from the Customer. The Customer must enter into a data processing agreement (in accordance with the guidelines and standard agreements of the Danish Data Protection Agency or the Commission) with an operational supplier designated by the Supplier if the Supplier delegates the operation of the Service or parts thereof to third parties. If the Customer does not enter into such an agreement at the Supplier's request, either party may terminate the Agreement with immediate effect.
The Customer is at all times responsible for ensuring that no personal data is stored and processed in the operating environment contrary to the legislation on the protection of personal data. Contravention will be considered a material breach of the Agreement and will entitle the Supplier to terminate the Agreement. The Supplier refers to the guidelines and guidance notes of the Danish Data Protection Agency, which can be found at www.datatilsynet.dk.
The Customer must indemnify the Supplier in the event that the Supplier causes damage as a result of the Supplier's processing of personal data in accordance with instructions from the Customer or otherwise under this Agreement.
The Supplier must indemnify the Customer in the event that the Supplier causes damage as a result of the Supplier's processing of personal data contrary to the Customer's instructions or otherwise in breach of the Agreement.
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 10,000,000.00, and the minimum limit of cover for the professional liability insurance is DKK 1,000,000.00.
15. 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.
16. 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.
17. 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 coverage of such increased costs through an extraordinary adjustment of the charge with immediate effect.
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.
The Customer may terminate the subscription 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.
20. 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 in a usable format, the Supplier must 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.
By accepting these Terms, the Customer explicitly consents to the Supplier and other companies of the 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.
This agreement is subject to Danish law, and any disputes will be settled at the venue specified in the Supplier's articles of association.
Updated July 6, 2017.
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