Terms of Business
TERMS AND CONDITIONS (“License Terms”) – January 2021
These License Terms, including the Data Processing Agreement (hereinafter” The LicenseTerms”) set out the terms and conditions governing the licensing of The Licensor Custimy.io’s Software as a Service (SaaS) Customer Data Platform and Cloud Web Application with all associated services including software, services, documentation, instruction manuals, hosting, sales, marketing, consulting and support, consultancy and training, etc. with or without remuneration, (the Licensed).
The license terms are agreed between:
(“Licensor”): Custimy ApS, Nørregade 28D, 1165, København, CVR number: 41514280 and its suppliers, subcontractors, distributors, distributors, and other partners
(“Licensee”): You as a customer, including your company, its employees, and users, as well as all other parties and third parties and their employees and users who directly or indirectly access and use the Licensed.
- The terms of the licence, together with any separate agreement/order confirmation between the Licensor and the Licensee “Agreement” constitute. It is, by payment of the agreed licence fees and in the use of the legally binding contract between licensor and licensee for licensee access to and use of the Licensed. Is there a separately/order confirmation deviation from the License Terms, the separate agreement/order confirmation must be valid in advance.
- For all forms of access, Licensee must click “sign up or sign-in” when logging into the system, or otherwise access to use the Licensed, the Agreement accepts including the License Terms in its entirety.
- Licensee is responsible for all activities that occur during licensee’s use of the Licensed.
- Licensee is required to keep passwords etc. confidential and not to disclose or share it with any third party. Licensee shall immediately notify the Licensor of any unauthorized use of the Licensed Licensee, which the Licensee becomes aware of
3. The Licensed
- The Licensor hereby grants the Licensee, by accepting the License Terms, a time-limited, non-transferable, and non-exclusive right of use of the Licensed Licensed and any subsequent updates to the Licensed In accordance with the License Terms (“License Right”).
- The license right covers the licensee’s general use of the Licensed for his own use to the extent that it does not conflict with the licensor’s copyright rights or other rights associated with the use of the Licensed Including from third parties. Any breach of these rights shall be deemed to be a breach of this License Agreement.
- Licensee is unjustifiable to lend, sell, rent, share, outsource or otherwise entrust the use of the program to third parties without the written consent of the Licensor.
- The Licensed may not be used for activities competing with the Licensor. Thus, the Licensee may neither use nor allow others to use or access a Licensed licensee to:
- Build a competitive product or service,
- Manufacture or make a product using similar ideas, features, features or graphics in da Licensed,
- Make derivative works based on the Licensed.
- For example, you can copy functions, features, or graphics in the Licensed.
- Licensor provides support to Licensee as described on the Licensor’s website https://www. custimy.io and Licensor may, by separate agreement, provide the Licensee with consultancy services in return for payment of fees in connection with the use of the Licensed.
4. Rights to the Licensed – Changes
- The Licensor shall make available the Licensed as they are and assume no obligation to develop and/or provide upgrades to the Licensed. Licensee is responsible for determining whether the Services or the information generated by it are accurate or sufficient for licensee purposes.
- Licensor has the right to continuously update the Licensed When the Licensor deems it necessary and removes or modify features that licensor deems necessary to provide the best possible service to the Licensee, including, but not only, in relation to layout, design, functionality, compatibility and the like without altering licensee’s obligations to the Licensor or giving Licensee default powers.
- The Licensee is unauthorized to modify the Licensed Without the Licensor’s prior written consent.
- Licensee is unauthorized to reverse-engineer, compile and/or disassembling the Licensed, breach any security measures, or otherwise attempt to access or investigate or disclose the source code or the construction of the Licensed.
- If Licensee links to third-party websites, through the Licensed, Licensee is informed that the third-party sites are not under the control of Licensor, and Licensor is not responsible for the content of third-party sites, any links contained in third-party sites, or changes or updates to third-party sites.
- Licensee may create links to the Licensed, if licensee does not remove or obscure, by framing(frame) or similar part of the Licensed Including the License Terms.
- It is unjustifiable for the Licensee to remove, modify or destroy any copyright, trademark or other rights that are located in the Licensed or form an integral part of the Licensed.
- The Licensor is entitled at any time to change the License Terms and the terms of issue at any time, the License Terms are set out on the Licensor’s website https://www. custimy.io.
- Licensor, has copyright and any other right to the Licensed, including but not only to the code, text, data, formulas, images, or other elements that Licensee may access through the Licensed.
- Da Licensed licensee is licensed and not sold, and the license given will not in any way, directly or indirectly, constitute a transfer of ownership or copyright from the Licensor to the Licensor.
6. Data and confidentiality
- “Customer Data” means all data from Licensee and from Licensee’s clients and customers transferred to, processed by, consolidated, segmented, stored with, and transmitted by the Licensor using the Licensed and for the purpose of providing the Licensed under the Agreement. With regards to personal data, see paragraph 11.
- Commercial information held by the parties concerning the other party and which is not Customer Data shall be considered confidential and shall not be disclosed to third parties without the party’s prior written consent. This obligation of confidentiality for both Licensee and License Giver also applies after termination of the Agreement.
- This provision does not include information that is publicly available that a party comes into its possession in good faith from a third-party that a party is required to disclose under legal rules or that the Licensor has or receives in order to perform its obligations or enforce its rights under the Agreement.
- The Licensor disclaims any liability for loss to the Licensee or others because of the fact that confidential or freely available information of any kind stored or unlawfully accessed by the Licensee itself, its employees or other authorized persons in the Licensed Property is altered or deleted by persons who have unduly, unlawfully or unauthorizedly accessed them.
- Any individually agreed terms and prices agreed with licensee are confidential. The licensor shall also keep customer data and information confidential, suchas the exceptions specified in theLicense Terms. However, the licensor has the right to use the customer as a reference, including using the Licensee logo on the Licensor’s website and in marketing materials.
- Licensee has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright permits of all Customer Data.
- Licensee undertakes to ensure that data entered in the Licensor’s system is in the agreed format and is virus-free and is not in any way capable of harming or adversely affecting the Licensed.
- Licensor uses commercially reasonable security measures to protect Customer Data from unauthorized disclosure or use.
- Licensee owns and continues to own all Customer Data and Licensee holds the copyright to data and files that Licensee itself deposits into the Licensed.
- By uploading Customer Data in the Licensed Licensor and its affiliates, licensee assigns a global, non-exclusive, royalty-free and irrevocable right and license to use, consolidate, segment, copy, store, distribute, transmit and display technical information and Customer data, as well as produce derivative works and products of the Licensed. The Right and License shall be granted in order for the Licensor to provide and maintain the Licensed, including providing support and advice, as well as for the purpose of computer monitoring, improvement, and support programs, to enable the Licensor to ensure compliance with the Licensee conditions and to provide information about licensee’s use of the Licensed Licensee for the purpose of assessing whether the product mix in the Licensed Licensee is optimal for licensees at any time.
- Under the license thus granted to the Licensor, the Licensee may collect, consolidate, segment, process, segregate and aggregate Customer and product data on the use and functioning of the Licensed, etc. from its various users, including statistical, technical and other Customer Data. Collection, machining and aggregation, etc. for the production of The Licensor’s internal and external statistics, for development purposes, including for the further business development of the Licensed and to develop and deliver customized services as well as new products, services and technologies to licensee and licensor’s other customers. Such processed and aggregated statistical data and other data will be anonymous and not identifiable in relation to licensee and will be the property of the Licensor and subject to the Licensor’s copyright.
- The licensor will also process the personal data of the Licensee, including users and administrators, etc. had to enter in the Licensed. For the processing of such personal data by the Licensor, see paragraph 11.
- The Licensed is assumed to be used by persons who are experts in each field and the use does not relieve the Licensee including the users of the Licensed person of their usual responsibility. Any use of information, solutions, techniques, etc. in the Licensed is thus at your own expense and at risk. The licensor shall not be liable for the licensee’s use of the Licensed Including Defects as a result.
- Licensor and Licensor’s suppliers, resellers, and other business partners assume responsibility for the accuracy and error of the product data, formulas, structures, and other information, but strive to keep the product up-to-date, correct and error-free.
- Licensor is not responsible for licensee’s use of the Licensed. The Licensor shall not be liable for any breach of law carried out in connection with the use of the Licensed Licensed, nor is the Licensor liable for any loss to licensee incurred as a direct or indirect result of the use of the Licensed.
- Licensor and Licensor’s suppliers, distributors and other business partners are not responsible for product liability unless otherwise provided by mandatory legislation to do so. The licensor and the licensor’s suppliers, distributors and other business partners’ responsibility for product liability are thus waived by this agreement to the full extent of the applicable law.
- Licensor does not guarantee that the use of the Licensed is error-free or uninterrupted. Licensor is not responsible for software installed or used by Licensee or other users, or for the operation or performance of theNetwork. Similarly, it cannot be guaranteed or ensured that software and hardware directly or indirectly linked to the performance and functioning of the software are free of viruses or other harmful elements. Licensor is not responsible for clerical errors, typographical errors, changes or inaccuracies in text, fonts, graphics, or the like, whether due to circumstances attributable to the use of the Licensed.
- If licensor provides advice or guidance to Licensee on marketing, social media, or personal data protection etc. in connection with the use of the Licensed Licensee, Licensor is not responsible for improper advice to Licensee, whether or not this is due to incorrect information provided by licensee.
- Licensee is responsible for all activities that take place during licensee’s use of the Licensed. Licensee agrees to immediately notify the Licensor of any unauthorized use of the Licensed or other known or suspected security breach.
- Licensee is responsible at its own expense for acquiring, installing, maintaining, and updating all hardware, computer software and communication functions necessary for the use of the Licensed.
- The licensor disclaims any liability to the Licensee if a third-party claims damage.
- Licensee shall indemnify the Licensor for any loss incurred by it as a result of the third party’s claim due to the Licensee’s use of the Licensed.
8. Limitation of liability
- The Licensor shall not be liable to the Licensee for its indirect losses, including but not limited to operating losses, loss of profit, loss of use, deprivation, loss of production, lost profits or losses in the event of the Licensee’s breach of its obligations to the third party as a result of deficiencies in the Licensed Party, or for any economic loss or for any indirect or consequential damages. This applies in particular, but not only, to data loss and costs associated with the restoration or reproduction of such data. The Licensor also has no liability to licensee relating to claims or third party objections raised on the basis of data or files that Licensee has placed in the solution.
- The licensor and the licensor’s suppliers, distributors and other partners’ liability for loss or damage may in no case, regardless of the liability, exceed an amount equal to the Licensed fees paid for the Licensed, up to a maximum of 6 months. However, the amount limitation of liability shall not apply if this is contrary to mandatory law.
9. Force majeure
- Force majeure: Under the Agreement, neither party shall be held liable to the other Party in respect of matters which is beyond the control of the Party and which the Party should not have taken into account, nor should it have avoided or overcome, including but not limited to war and mobilisation, civil unrest, natural disasters, strikes, lockouts, epidemics, pandemics, failing supplies of raw material, fire, damage to production equipment, disruption of general interconnection, including energy supply and import and/or export bans. If the delay period or non-compliance continues for more than 30 days, the party concerned may terminate the Licensed immediately by giving a written notice to the party concerned.
10. Entry into force, license fees and termination
- The Agreement shall enter into force upon the Licensee’s use of the Licensed, including acceptance of the License Terms.
- Payment can be made in several ways:
- Via credit card and payment card: Licensor cooperates with Stripe Payment ltd – which uses the best security solutions. Payment is always SSL encrypted.
- By invoice: The invoiced amounts are collected according to separate agreement/order confirmation or by bill and are due prior to the agreement period to payment on the invoice date with a payment deadline of 14 days. In the case of late payment, the licensor may, without re due, charge interest and reminder fee in accordance with the provisions of the Danish Interest Act.
- Licensor’s license fees/prices for using the Licensed are listed on the Licensee’s website or on invoice/order confirmation.
- Licensee may use the licensed licensee free of charge for the first 30 calendar days after use in the end. If, before the expiry of the 30 calendar days, the Licensee does not enter into an agreement to purchase with the Licensor, licensee’s access to the Licensed Without Notice ceases and the Licensor is entitled to delete all Customer Data without notice.
- If licensee enters into an agreement with the Licensor to purchase and pays the agreed licence fee and any other amounts agreed upon, Licensee may continue to use the Licensed Licensee and thereafter apply the following, unless the pairs have separately agreed otherwise:
- The agreement has a reciprocal period of 3 months, the Agreement, if not terminated in writing with 30 calendar days’ notice automatically continues for a new period of 3 months with the obligation of the Licensee to pay the agreed license fee 3 months in advance, and so on for periods of 3 months.
- Licensee accepts and acknowledges that the Licensor is entitled to, but is not obligated to retain, Customer Data after termination, and may choose to delete after the termination date without notice all Customer Data held by the Licensor.
- Licensee accepts and acknowledges that licensor is entitled to, but is not obligated to retain Customer Data, and may choose to delete without notice Customer data that remains in licensor’s possession after the termination date.
- All license fees and prices are reported excluding VAT.
- The purchase of the Licensed Is not subject to any charges and no license fees are refunded or refundable.
- The Licensor may at any time, with 30 calendar days’ notice to the Licensee, change the terms, prices, and content of the Licensed. In the case of changes which significantly reduce the usefulness or impede the use of the Licensee, the Licensee shall be entitled to terminate the Agreement without notice and with immediate effect.
- In the event of the Licensee’s material breach of these License Terms, the Licensor shall be entitled to terminate the Agreement with immediate effect and to terminate access to the Licensed. Material default shall also be considered as:
- The obligations referred to in paragraphs 3, 5 and 6 shall be honored.
- Non-payment of overdue licence fees and other amounts agreed upon.
- Licensee misuses the Licensed by, for example, using or attempting to use other people’s passwords, etc. or otherwise interfere with the functions of the Licensed.
- That Licensee uses the Licensed in violation of the License Terms and/or The Agreement.
- That the Licensee should go into liquidation, restructuring, bankruptcy or initiate piecework negotiations.
- Termination under paragraph 10.4 presupposes that the party wishing to terminate the Agreement has made an order stating the breach and that the Party wishes to terminate the agreement and that the other Party has not terminated the breach within 10 days of the order being submitted. In the event of termination of the agreement, the licensee is obliged to immediately cease the use of the licensed and licensor is not obliged to reimburse the license fees paid in whole or in part.
- With regards to personal data, see paragraph 11.
11. Personal data, etc.
- In relation to licensee’s personal data under the Agreement, The Licensor is the data processor and the Licensee is the controller. Licensor acts solely on the instructions of the licensee. Under the Agreement, licensee and Licensor must comply with the EU General Data Protection Regulation (GDPR). The Rights and obligations between licensor and licensee are governed by the data processors referred to in Article 11(2) of Regulation (EC) No 1258/1999. The licensor’s website https://www.custimy.io, which is an integral part of the Agreement. The data processor has been prepared on the basis of the Data Protection Authority’s standard data processing agreement.
- The data processor will enter into force at the end of the use of the Licensed, including the Licensee’s acceptance of the Licensee’s terms and the Agreement.
- Licensor will collect and store registered personal data in order to provide Licensor’s services to Licensee. The personal data may also be used to communicate with Licensee with respect to the Licensor’s new products and/or services. Licensee approves licensor’s right to communicate with licensee by physical mail, telephone or email to inform about changes, offers, etc. dis may be linked to the Licensed and/or Agreement. If Licensee does not wish to receive offers from the Licensor during the Agreement or after the Agreement terminates, Licensee may reject them by contacting the Licensor directly.
12. Other terms
- Any written statement or communication between the Parties pursuant to the Agreement may, in binding effect, be sent to the email address provided by the parties at the time of conclusion of the Agreement.
- All terms and provisions of the Agreement, including supplements and amendments thereto, which, by their nature, are intended to apply also upon termination or expiration, including provisions on confidentiality and copyright, etc. must also be in force at the end of the period.
- Nothing in the Terms of License and/or Agreement may be construed as the creation of a partnership, franchise, employment, joint venture, agency relationship or similar of any kind between the Parties.
- If any provision of this contract is deemed invalid or unenforceable by a court or administrative body with competent jurisdiction, such invalidity shall not affect the other provisions of this contract which remain in full force and effect.
- The Licensor has the right to freely transfer the Licensee Agreement on the Licensed to a subsidiary or a third party without notice if the transfer does not alter the Licensee’s terms and conditions.
- Licensee may not transfer rights and obligations to others without the written approval of the Licensor.
- Any inconsistencies and disputes which may arise from the Agreement, including interpretation, validity, and execution, must be settled in accordance with Danish law. with the Court of Aarhus as a jurisdiction.
- The Agreement does not limit the right of any party to apply to the courts at any time in the event of an infringement or threatened infringement by the other party of the provisions of paragraphs 3, 5 or 6.