Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Account": means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Affiliate": means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
"Agreement": means a contract, including a Service Order Form between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;
“Applicable Law”: means the laws specified in Section 6 of the Service Order Form;
"Business Day": means any weekday other than a bank or public holiday in Denmark;
"Business Hours": means the hours of 09:00 to 17:00 CEST on a Business Day;
"Charges": means the following amounts:
(a) the amounts specified in Section 3 of the Service Order Form;
(b) such amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the Provider's standard time-based charging rates (as set out in Section 3.3 of the Service Order Form) by the time spent by the Provider's personnel performing the Support Services (rounded down by the Provider to the nearest quarter hour);
"Control": means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
"Compatibility Specification": means the current release from time to time of the most used web browsers, and the current release from time to time of iOS and Android shall be supported in accordance with Clause 16.1;
The Hosted Services are compatible with smartphones running on the three most recent major versions of Android and on the three most recent major versions of iOS (Android 9, 10, 11 and iOS 11, 12 and 13 in June 2020)
The Hosted Services browser accessible are compatible with the most recent version of the following browsers:
• Microsoft Edge
• Google Chrome
• Safari
• Firefox
"Customer"
means the person or entity identified as such under “parties” in the Service Order form;
"Customer Confidential Information” means:
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer (or a tenant of a Customer); transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Data Protection Laws” means all applicable Danish regulations relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date” means the date upon which the parties execute a hard-copy Service Order Form;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars), including such events affecting a subcontractor of a party;
"Hosted Services" means the Captego Platform as specified in Section 2 of the Service Order Form, which will be made available by the Provider to the Customer as a service via the internet in accordance with these Terms and Conditions;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Section 2 of the Service Order Form and in the Hosted Services Presentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Minimum Term" means, in respect of the Agreement, the period as set out in Section 1.2 of the Service Order form beginning on the Effective Date;
“Notice” means a written notice in the form and format as defined in Section 22;
"Personal Data" has the meaning given in the EU Data Protection Laws applicable from time to time;
"Platform" means the platform (including all integrated services under the platform such as - but not limited to - the mobile app) managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the hardware on which that application, database, system and server software is installed or integrate with;
"Provider" means the person or entity identified as such under “parties” in the Service Order form;
"Provider Indemnity Event" has the meaning given to it in Clause 17.1;
"Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;
"Service Order Form" means a hard-copy order form signed or otherwise agreed by or on behalf of each party or an online order form published by the Provider and completed and submitted by the Customer, in each case incorporating these Terms and Conditions by reference;
"Set Up Services" means the configuration, implementation and integration of the Hosted Services in accordance with Section 2 of the Service Order Form;
“SLA” means service level agreement;
"Support Services" has the meaning given to it in Clause 1.2 of Schedule 4;
"Term" means the term of the Agreement, commencing in accordance with the Effective Date and concerning the Service Release Date as set out in Section 1.1 of the Service Order Form;
"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Service Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;
"Update" means a hotfix, patch or version update to any existing feature covered in the Hosted Service Specifications;
"Upgrade" means the addition of a new optional feature to any Platform software or hardware.
2.1 The Agreement shall come into force upon the Effective Date.
2.2 The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 20.
2.3 Unless the parties expressly agree otherwise in writing, each Service Order Form shall create a separate contract under these Terms and Conditions.
3.1 The Provider shall provide the Set Up Services to the Customer.
3.2 The Provider shall use all reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in Section 1 and 2 of the Service Order Form.
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 18, the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions, cf. Clause 18.6.
3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services and/or the Hosted Services and/or Customer Upgrades shall be the exclusive property of the Provider.
4.1 The Platform will automatically generate an Account for the Customer on the Effective Date (or such other date as agreed in the Service Order Form) and will provide to the Customer login details for that Account.
4.2 The Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services during the Term subject to these Terms and Conditions and in accordance with the Hosted Service Specification.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Usage Limitations as set out in Section 2.4 of the Service Order Form;
(b) the Hosted Services must not be used at any point in time to benefit a higher number of tenants than the number covered by the Service Fee as set out in Section 3.2 of the Service Order Form, providing that the Customer may add or remove included tenants if the number of tenants change, subject to an increase or decrease in the Service Fee, accordingly.
4.4 Except to the extent expressly permitted in the Service Order Form, these Terms and Conditions or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorized person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties outside the agreed purpose of the Hosted Services and the Hosted Service Specifications;
(d) the Customer must not make any alteration to the Platform and the Hosted Services; and
(e) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services without the prior written consent of the Provider.
4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
4.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.
4.7 The Customer, shall ensure and warrants that all subcontractors of the Customer and all users of the customer account with an access to the Hosted Services and Platform shall comply with these Terms and Conditions and Schedule 1 (Acceptable Use Policy), and agrees to ensure that all persons using the Hosted Services with the authority of the Customer, subcontractor or by means of an administrator Account comply with these Terms and Conditions and Schedule 1 (Acceptable Use Policy).
4.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Hosted Services and Platform, either during or after the Term.
4.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 10 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The Provider shall provide the Maintenance Services as a professional company.
5.3 The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).
5.4 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 10 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
6.1 The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
6.2 The Provider shall provide the Support Services to the Customer during the Term.
6.3 The Provider shall provide the Support Services as a professional company.
6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under the Agreement is overdue, and the Provider has given to the Customer at least 10 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits (including relevant KYC / AML documentation),
as are reasonably necessary to enable the Provider to perform its obligations under the Agreement.
7.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.
The Customer must provide to the Provider, or procure for the Provider, such access to the facilities of the Customer Location as may be reasonably required by the Provider to enable the Provider to perform its obligations under the Agreement.
8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement, hereunder to further develop the Hosted Services and algorithms of the Provider. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in the Agreement.
8.2 The Customer warrants to the Provider that the Customer Data uploaded by the Customer will not infringe the Intellectual Property Rights or other legal rights of any person or company, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law when used by the Provider in accordance with the Agreement.
8.3 The Provider shall create a backup copy of the Customer Data at least weekly, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the backup was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
9.1 The parties acknowledge and agree that the use of all integrated services in the Platform (including but not limited to the mobile app, the web admin tools and 3rd party integrations), the parties' respective rights and obligations in relation to such integrated services and any liabilities of either party arising out of the use of such integrated services shall be subject to these Terms and Conditions, and accordingly these Terms and Conditions shall govern any such use, rights, obligations or liabilities.
10.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer or from the Customer to the Provider and Provider shall retain full title to and ownership of the Hosted Services and all technical elements, methods and practices required for its delivery to customers.
11.1 The Customer shall pay the Charges to the Provider in accordance with these Terms and Conditions.
11.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 11.2.
11.3 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
11.4 The Provider may after the expiry of the Minimum Term change any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation expiring on any anniversary of the date of execution of the Agreement, providing that no such variation shall constitute a percentage increase in the relevant element of the Charges that exceeds 2% over the percentage increase, since the date of the most recent variation of the relevant element of the Charges under this Clause 11.4 (or, if no such variation has occurred, since the date of execution of the Agreement), in the Customer Price Index published by EUROSTAT.
12.1 The Provider shall issue invoices for the Charges to the Customer from time to time during the Term, on, or after the invoicing dates as agreed in Section 3 of the Service Order Form.
12.2 The Customer must pay the Charges to the Provider within the payment term as set out in Section 3 of the Service Order Form following the issue of an invoice in accordance with this Clause 12.
12.3 The Customer must pay the Charges by bank transfer using such payment details as are notified by the Provider to the Customer from time to time.
12.4 If the Customer does not pay any amount properly due to the Provider under these Terms and Conditions, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate as set out in the Section 3.4 of the Service Order Form (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to Applicable Law.
12.5 Non-payment of charges not legitimately disputed in writing by the Customer is considered a material breach of contract and allows the Provider to suspend access to the Hosted Services until paid. Provider and Customer agree to forebear non-payment of legitimately disputed charges provided amicably resolved by the parties within 45 days from the date invoiced.
13.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
13.2 Notwithstanding Clause 13.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information. Provider shall be fully liable for any direct and documented damage caused by its officers, employees, professional advisers, insurers, agents and subcontractors by disclosing any Customer Confidential Information.
13.3 This Clause 13 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
13.4 The restrictions in this Clause 13 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.
13.5 The provisions of this Clause 13 shall continue in force indefinitely following the termination of the Agreement.
14.1 It is the mutual understanding of the Parties that no Personal Data governed or regulated by the Data Protection Laws will be exchanged or processed under the Agreement and therefore no Data Processing Agreement is needed or concluded between the Parties.
14.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement, cf. also Clause 8 concerning Customer Data.
14.3 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data under the Agreement, then the Parties shall use their best endeavours promptly to agree such variations to the Agreement and to the extent necessary conclude a Data Processing Agreement to remedy such non-compliance.
15.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;
(b) the Provider will comply with applicable legal and regulatory requirements under Applicable Law applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under these Terms and Conditions; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
15.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification but are not guaranteed to operate uninterrupted, be available or error-free at all times;
(b) the Platform will incorporate security features reflecting the requirements of good industry practice.
15.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not breach any laws, statutes or regulations under Applicable Law.
15.4 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.
15.5 The Customer warrants to the Provider:
15.6 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
16.1 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Compatibility Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
16.2 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services.
16.3 The Customer acknowledges that the Hosted Services provided by Provider are not guaranteed to meet Customer’s merchantability or fitness for a particular practical or economic purpose.
17.1 The Provider shall indemnify the Customer against liabilities, damages, losses, costs and reasonable expenses suffered or incurred by the Customer and arising directly as a result of any breach by the Provider of these Terms and Conditions (i) Provider’s infringement of a third party’s intellectual property rights in the provision of the Hosted Services, (ii) Provider’s fraudulent actions, (iii) bodily injury or property damages caused by Provider (each a "Provider Indemnity Event"), however subject to the limitations in Clause 18.
17.2 The Customer must:
(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
(b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
(d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
and the Provider's obligation to indemnify the Customer under Clause 17.1 shall not apply unless the Customer complies with the requirements of this Clause 17.2.
18.1 The limitations and exclusions of liability between the Provider and Customer set out in this Clause 18 and elsewhere in these Terms and Conditions govern all liabilities of the Provider arising under these Terms and Conditions, the Service Order Form or relating to the subject matter of these Terms and Conditions and the Service Order Form, including liabilities arising in contract, due to delays, defects, product liability, and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
18.2 The Provider shall not be liable in respect of any losses arising out of a Force Majeure Event.
18.3 The Provider shall not be liable in respect of any special, indirect or consequential loss or damage, including any loss of profits or anticipated savings, any loss of revenue or income, any loss of use or production or of any loss of business, contracts, opportunities, data or corruption of any data, database or software.
18.4 The Provider shall not be liable for any loss or damage, resulting from errors, changes or breakdowns in services provided by third-parties, third-party operating systems or third-party software.
18.5 The Provider shall not be liable for any loss or damage (including due to delay in the performance of the Providers obligations), resulting from delay or errors in the Customer performing its obligations under the Agreement, including the Customer Obligations as set out in Clause 7.
18.6 The Provider expressly disclaim all representations, warranties, responsibilities and liabilities in regards to templates and applications generated and designed on the Platform (including the Hosted Services), whether express or implied, including any representations, warranties, responsibilities and liabilities in regard to the performance, design, quality, suitability or fitness for a particular purpose, merchantability, accuracy or completeness of any templates or applications generated and designed on the Platform.
18.7 On all areas and concerning all types of claims, damages, penalties, cost, fines and liabilities (in any form whatsoever – “Claim”) including such Claims based on series of related events, that is covered by the insurances as set forth in Section 5.1 of the Service Order Form, the Provider’s total aggregated liability is limited to the granted and awarded insurance payments under such insurances (subject to and within the specified insurance limits).
18.8 On all areas and concerning all types of claims, damages, penalties, cost, fines and liabilities (in any form whatsoever – “Claim”) including such Claims based on series of related events, that is not covered by the insurances as set out above in Clause 18.6 and in Section 5 of the Service Order Form, and which is not subject to other limitations of liability in the Terms and Condition, the Provider’s total aggregated liability is limited to the Customer’s payments in cash for the Provider’s services and deliveries during the last 12 months prior to the act that gave rise to the liability.
Notwithstanding the foregoing, the maximum total aggregate liability of the Provider under the Agreement pursuant to Section 18.7 concerning all Claims cannot exceed USD 100.000 (“The Max Liability Cap”).
19.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
19.2 A party that becomes aware of a Force Majeure Event that gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
19.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
20.1 The Provider may terminate the Agreement by giving to the Customer not less than 60 days' written notice of termination, expiring at the end of a calendar month after the end of the Minimum Term.
If the Agreement has not been terminated within 60 days prior to the end of the Minimum Term, the Agreement shall automatically be renewed and be prolonged for an additional period of one (1) year (the “Additional Term”) subject to the payment terms already agreed with the Customer in Section 3 of the Service Order Form (unless agreed otherwise). The same notice of termination and automatically renewal terms shall apply on all Additional Terms.
20.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of the Agreement, and the breach is clearly not remediable within a reasonable period of time or with commercially acceptable work around solutions;
(b) the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.
20.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is under a procedure ending with its termination without a legal successor;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement)
20.4 The Provider may terminate the Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that written notice of termination is given; and
(b) the Provider has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Clause 20.4.
21.1 Upon the termination of the Agreement, the provisions of these Terms and Conditions shall cease to have effect, except of such provisions of these Terms and Conditions which by their nature should survive termination, including without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.
21.2 Except to the extent that these Terms and Conditions expressly provide otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
21.3 Within 30 days following the termination of the Agreement for any reason and the receipt of the Provider’s respective invoice:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
without prejudice to the parties' other legal rights.
22.1 Any notice (“Notice”) from one party to the other party under these Terms and Conditions must be given by e-mail sent to the contact persons, which shall be deemed to have been duly delivered at 9:00 a.m. the Business Day after it was sent; (using the relevant contact details set out in Clause 22.2)
22.2 The Provider's contact details for notices under this Clause 22 shall be as set out under “parties” in the Service Order Form.
22.3 The addressee and contact details set out in the Service Order Form and Clause 22.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 22. It is the obligation and sole responsibility of each party to update the relevant contact details and inform the other party of such change. The party shall bear the responsibility of not having updated its contact details.
23.1 The Provider may subcontract any of its obligations under the Agreement without the prior written consent of the Customer, providing that all subcontractors must be reputable third party service providers.
23.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations, subject to the limitation in these Terms and Conditions.
23.3 Notwithstanding the provisions of this Clause 23 but subject to any other provision of these Terms and Conditions (including the provision of the Data Processing Agreement), the Customer acknowledges and agrees that the Provider in addition may subcontract to any reputable third party hosting business the hosting of the Hosted Services and the Platform and the provision of services in relation to the support and maintenance of elements of the Hosted Services and the Platform.
24.1 The Provider must not assign, transfer or otherwise deal with the Provider's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Provider may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time, cf. however Clause 23.1.
24.2 Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement
25.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
25.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
26.1 If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
26.2 If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
27.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party (unless expressly agreed otherwise in the Service Order Form).
27.2 The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
28.1 The Agreement may not be varied except in accordance with this Clause 28.
28.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.
29.1 The Service Order Form, these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
29.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
29.3 The provisions of this Clause 29 are subject to Clause 18.1.
Schedule 1 (Acceptable Use Policy)
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of the Hosted Services and the Platform (including all integrated services on the Platform) and the website Captego.com, any successor website, and the services available on that website or any successor website (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to the Provider (“the Captego entity”) as set out under “parties” in the Service Order Form (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express consent and agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 You must be at least 16 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 16 years of age.
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorized by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 Outside the agreed scope of use of the Hosted Services under the Agreement, You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 15 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6.1 Outside the agreed scope of use of the Hosted Services under the Agreement, content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must where relevant ensure that Content is appropriately categorized.
7.8 You should use appropriate and informative titles for all Content.
7.9 You must at all times be courteous and polite to other users of the Services.
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering outside the agreed scope of the services on the Platform.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
8.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
8.6 All use of the Services must comply with the rules on advertisements set out in the Danish The Marketing Practices Act (in Danish “markedsføringsloven”) and specific requirements and regulations based on this act.
9.1 You must comply with all relevant laws and regulations concerning regulated businesses..
9.2 You must comply with all relevant laws and regulations concerning regulated business, including without limitation for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
10.1 You acknowledge that we may actively monitor the Content and the use of the Services, however we do not undertake any liability to do so.
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services for purposes outside the scope of the provided Services.
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Schedule 2 (Availability SLA)
1.1 This Schedule 2 sets out the Provider's availability commitments relating to the Hosted Services.
1.2 In this Schedule 2, the following definitions are being used:
"Downtime" means time where The System, or core functions of The System, is unavailable
"Downtime Period" means a period of one or more consecutive minutes of Downtime. Partial minutes or Intermittent Downtime for a period of less than one minute will not be counted towards any Downtime Periods.
"Monthly Uptime Percentage" means total number of minutes in a month, minus the number of minutes of Downtime suffered from all Downtime Periods in a month, divided by the total number of minutes in a month.
“SLO” means Service Level Objective
1.3 If The Provider does not meet the SLO , and if Customer meets its obligations under this SLA, Customer will be eligible to receive the Service Credits described below.
This SLA states Customer’s sole and exclusive remedy for any failure by the Provider to meet the SLO. Capitalized terms used in this SLA, but not defined in this SLA, have the meaning stated in the Service Order Form and the Terms and Conditions.
2.1 The Provider shall use reasonable endeavours to ensure that the uptime for the Hosted Services is at least 98% during each calendar month.
2.2 The Provider shall be responsible for measuring uptime;
2.3 The Customer can access reports showing measured uptime at https://status.captego.com
3.1 Financial credit table:
Monthly Uptime Percentage
Percentage of monthly bill for the respective Covered Service which does not meet SLO that will be credited to future monthly bills of Customer
97% to < 98%
10%
95% to < 97%
20%
< 95%
30%
3.2 In respect of each calendar month during which the Hosted Services uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with the provisions of the table in Paragraph 3.1
3.3 In order to receive any of the Financial Credits described above, Customer must notify Providers’ technical support within 24 hours from the time Customer becomes eligible to receive a Financial Credit. Customer must also provide Provider with log files showing Downtime Periods and the date and time they occurred. If Customer does not comply with these requirements, Customer will forfeit its right to receive a Financial Credit. If a dispute arises with respect to this SLA, Provider will make a determination in good faith based on its system logs, monitoring reports, configuration records, and other available information.
3.4 The maximum aggregate number of Financial Credits issued by Provider to Customer for all Downtime Periods in a single billing month will not exceed 30% of the amount due from Customer for the Covered Service for the applicable month. Financial Credits will be in the form of a monetary credit applied to future use of the System and will be applied automatically by the Provider for the next billing cycle.
Financial credit may not be redeemed for cash.
Upon the termination of the Agreement, the Customer's entitlement to financial service credits shall immediately cease, save that financial service credits earned by the Customer shall be offset against any amounts invoiced by the Provider in respect of Hosted Services following such termination.
4.1 Downtime caused directly or indirectly by any of the limitations of liability set out in Section 18 of the Terms and Conditions or scheduled maintenance carried out in accordance with the Agreement shall not be considered when calculating whether the Provider has met the uptime guarantee given in Paragraph 2.1.
4.2 The Provider’s blocking of data communications or other Service in accordance with its acceptable use policy (Schedule 1) shall not be deemed to be a failure of the Provider to provide adequate service levels under this Agreement.
4.3 The SLA does not apply to any: (a) features or services designated Alpha or Beta (unless otherwise set forth in the associated Documentation), (b) features or services excluded from the SLA (in the associated Documentation), or (c) errors: (i) caused by factors outside of Provider’s reasonable control; (ii) that resulted from Customer’s software or hardware or third party software or hardware, or both; (iii) that resulted from abuses or other behaviors that violate the Agreement; or (iv) that resulted from quotas applied by the system and/or listed in .
Schedule 3 (Maintenance SLA)
1.1 This Schedule 3 sets out the service levels applicable to the Maintenance Services.
2.1 The Provider shall where practicable give to the Customer at least 10 Business Days' prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 3.
2.2 The Provider shall provide all scheduled Maintenance Services outside the official opening hours of the Customer Location whenever possible.
3.1 The Provider shall where practicable inform the Customer of the application of any security Update and of any non-security Update to the Platform.
3.2 The Provider shall apply Updates to the Platform as follows:
(a) third party security Updates shall be applied to the Platform promptly following release by the relevant third party, providing that the Provider may – acting reasonably – decide not to apply any particular third party security Update;
(b) the Provider's security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update;
(c) Non-security updates shall be applied to the Platform on an ongoing basis
4.1 The Provider reserves the right to change or remove features of the Hosted Services from time to time.
4.2 The Provider reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable or illegal.
4.3 Upgrades that cannot be considered improvements of existing functionality are considered new features, and may not be included in the Customer’s current subscription and may come at an additional cost if the parties agree
Schedule 4 (Support SLA)
1.1 This Schedule 4 sets out the service levels applicable to the Support Services.
1.2 In this Schedule 4, support services shall be divided into the following categories (jointly “Support Services”):
(a) Error Support: support requests relating to any kind of defect where the Hosted Services do not work as promised and/or intended (see definitions of categories in Schedule 4, Section 4);
(b) Customer Support: support requests made by the Customer, relating to the Services within this Agreement, not categorized as Error Support (Q&A).
(c) End-User Support: support requests relating to issues for individual end-users of the Hosted Services;
1.3 The Provider shall provide (a) Error Support and (b) Customer Support to the Customer.
1.4 Unless otherwise agreed in the Service Order, the Customer shall not provide Support to (c) end-user and / or subcontractors concerning the Hosted Services.
2.1 The Provider shall make available a Customer Helpdesk that shall be used for the purposes of requesting and, where applicable, receiving Error Support and Customer Support.
2.2 The Provider shall ensure that the Customer Helpdesk is accessible for Customer by the email address set out under “parties” in the Service Order Form.
2.3 The Customer shall ensure that all requests for Error Support and Customer Support that it may make from time to time shall be made through the Customer Helpdesk.
2.4 The Provider shall ensure that the Customer Helpdesk is operational and adequately staffed during Business Hours during the Term.
3.1 Unless expressly agreed otherwise in Section 4.3 of the Service Order Form, the Provider undertakes no obligation to provide direct support to end-users of the Customer.
3.2 Unless expressly agreed otherwise in Section 4.3 of the Service Order Form, the Provider undertakes no obligation to provide or make available a System Helpdesk enabling End-User Support.
4.1 Requests for Error Support shall be categorized as follows:
(a) critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable for a significant share of the users; more than one core function of the Hosted Services is significantly impaired for a significant share of the users; Probable data loss;
(b) serious: a core function of the Hosted Services is significantly impaired for a significant share of the users; more than one core function of the Hosted Services is impaired for a significant share of the users;
(c) moderate: a core function of the Hosted Services is impaired for a significant share of the users, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired for a significant share of the users];
(d) minor: any impairment of the Hosted Services for a significant share of the users not falling into the above categories; and any cosmetic issue affecting the Hosted Services for a significant share of the users];
4.2 The Provider shall determine, acting reasonably, into which severity category an issue fall and may determine that a request for Error Support is in fact not an issue falling into any of the categories.
5.1 The Provider shall use reasonable endeavours to respond to requests for Error Support promptly and in any case in accordance with the following time periods:
(a) critical: 1 Business Hours;
(b) serious: 4 Business Hours;
(c) moderate: 1 Business Day;
(d) minor: 5 Business Days;
5.2 The Customer shall ensure that a request for Error Support include the relevant information, and the Customer is responsible for the collection of these information. The Provider is obliged to inform the Customer of any missing information without undue delay.
5.3 The Provider shall use reasonable endeavours to respond to requests for Customer Support within 8 Business Hours.
5.4 The time taken to respond to a support request shall be determined as the number of Business Hours commenced from the request was reported until the first response by the Provider.
6.1 The Provider shall start resolving the issues raised through requests for Error Support promptly and in any case in accordance with the following time periods:
(a) critical: immediately;
(b) serious: 2 Business Hours;
(c) moderate: 5 Business Days;
(d) minor: 60 Business Days;
6.2 The Provider shall provide assistance as requested through requests for Customer Support as soon as commercially viable.
6.4 The time taken to start resolving an issue shall be determined as the number of Business Hours commenced from the request was reported until the Provider started resolving the issue.
6.5 The Provider may put a support ticket on-hold when the Customer is informed of missing information. The support ticket shall be considered active again when the Customer has provided the missing information to the Provider. Any time lapsed while the support ticket was on-hold shall be subtracted from the resolution commencement time.
7.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
8.1 If the total hours spent by the personnel of the Provider performing the Customer Support and end-user Support combined during any calendar month exceed the hourly amount as set out in Section 2.3 of the Service Order Form then:
(a) the Provider has to provide additional Customer Support and end-user Support to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges at an hourly rate as set out in Section 3.3 in the Service Order Form. The additional charges are subject to an advance notification by the Provider to the Customer that the monthly limit is foreseen to be exceeded.
(b) the Provider provision of Error Support shall not be limited by this Clause 8.1.
8.2 The total hours spent performing the Customer Support and end Support shall be measured using the Provider’s time tracking service provider.
8.3 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of the Hosted Services by the Customer; or
(b) any alteration to the Hosted Services made without the prior consent of the Provider.
Captego Scandinavia
Søndergade 74, 5.
8000 Aarhus
Denmark
DK-CVR 39630680
Captego International
Alexander Square
London
England
SW3 2AX
