Cloud Services Agreement –
TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES IN FORM OF SOFTWARE AS A SERVICE (SaaS).
These general conditions apply to the performance of services in the form of “Software as a Service (SaaS)”, including implementation, maintenance and support.
Unless the context or circumstances clearly suggest otherwise, the following capitalized terms shall have the meanings stated below:
“Contact Person” means the Contact Person appointed by each party in accordance with section 5.
“Data” means information, in any form, which belongs to the Client and are used, stored, or otherwise processed in the Services.
“Defects and Shortcomings” means any deviation in the Services or implementation of the Services from the Service Specifications.
“Key” means the login information, security methods or other information provided by the Supplier to the Client for the use of the Services.
“Service Specifications” means the definition of the Services, specifications, functions and other deliverables in the Services, included in or attached to this contract.
“Client” means the Company, or Companies, which have given the Supplier the assignment to perform the Services.
“Service Contract” means the commercial agreement, either in the form of a mutually executed written agreement, or in the form of a written offer (Quote) accepted by the Client, or the Client’s order and the Supplier’s confirmation, whereby the Client commissions the Supplier, and the Supplier agrees to perform the Services on terms and conditions specified therein and within these general conditions.
“Services” means all services that are to be provided by the Supplier under the Service Contract. Including, but not limited to, the result of the Service, such as reports and data. Deliverables such as implementation, system, software or documentation, which are to be delivered by the Supplier, are also included in “Services”.
“Supplier” means the party or parties named in the Service Contract, who shall perform the Services.
“User” is defined as a person with authorization to
use the licensed service
These general conditions are an integral part of the Service Contract and shall apply to the Services, except to the extent otherwise agreed upon by the parties. The Service Contract shall, unless otherwise agreed, consist of the agreed document, these general conditions, a Technical Support Scheme incl. severities are described as an extension to this agreement. If the provisions in other parts of the Services Contract and these general conditions are in conflict, the provisions in the other parts of the Services Contract shall have precedence with regards to interpretation. In the event support and maintenance services shall be provided as part of the Services, the parties shall agree on the necessary terms and conditions regarding support offering, trouble report, problem and error classification, response and rectification time frames etc.
3. THE SUPPLIER’S OBLIGATIONS
3.1.1 The Supplier shall, during the term of the Service Contract, provide the Client with the Services in accordance with the Service Specifications.
3.1.2 The Supplier or an implementation partner assigned by the Supplier shall conduct the implementation of the Services and the Services with due skill and care and in accordance with the Service Specifications and otherwise in accordance with applicable professional standards.
3.1.3 The Supplier shall provide the Services in accordance with all applicable laws and regulations.
3.2 System security
As stated in section 13, the Client is entitled to request from the Supplier information for the evaluation of the security for the Services.
The Supplier shall deliver necessary Keys to the Client in due time before the implementation of the Service.
3.4 Maintenance and upgrades
3.4.1 The Supplier shall keep the Services updated and upgraded so that the Services regularly are improved and enhanced.
3.4.2 Support and maintenance services shall be provided as part of the Services and the Supplier shall deliver maintenance in accordance with the attached Technical Support Scheme.
4. THE CLIENT’S OBLIGATIONS
4.1 The Client shall be responsible for having access to the Internet in order to access the Services.
4.2 The Client shall be responsible for managing the Key/s given to the Client.
4.3 The Client shall only use the Services in accordance with the Supplier’s instructions.
5.1 Each party shall appoint a Contact Person who shall be responsible for cooperation in all matters relating to the Services. Each party’s Contact Persons shall be specified in the Service Contract (or Quote) The Supplier’s Contact Person shall be responsible for the management and supervision of all works relating to the Services, and the Client’s Contact Person shall liaise with the Supplier in all matters relating to the Services. The Contact Persons shall have authority to make binding decisions and reach binding agreements within the framework of this Service Contract. Written notice shall be given to the other party if the Contact Person is changed.
5.2 At the request of either party, the other party shall provide information, which may reasonably be required for the proper performance of the Services.
Unless otherwise agreed, the provisions in this section 6 shall apply.
6.1 Day of Delivery
The Day of Delivery is the day upon which the Services are made available for the Client.
7.1 Model for Compensation
7.1.1 The Supplier is entitled to compensation for the Services in accordance with the Services Contract (Quote). The Supplier is further entitled to compensation for any addition to the Services if these have been ordered in writing from an authorized representative within the Client.
7.2 Current Account Basis
7.2.1 Any cost related to the implementation of the Services is performed on a current account basis and this contract shall be accompanied by a specification in the Service Contract (Quote).
7.3 Records and Audit
The Supplier shall keep true and accurate books and records of all financial matters in relation to invoicing regarding the delivered Services.
8.1 All costs related to the Services shall be invoiced upon signing of the Service Agreement.
8.2 Payment for the Services and implementation of the Services shall be made as set forth in the Service Contract (Quote).
8.3 If the Client does not pay within the prescribed time, the Supplier has the right to interest on overdue payment pursuant to applicable law.
9. PRICE REVIEWS
9.1 The price for the Services shall be specified in the Service Contract (Quote).
9.2 Either Party may request a renegotiation of the charges according to the specifications set forth in the Service Contract (Quote).
10. OWNERSHIP OF DATA
10.1 The Client shall retain and have the right to ownership to all client data.
10.2 The Supplier shall retain and have the right to ownership to all copyright, patent and other intellectual property rights attributable to the Services.
10.3 The Client shall have the right to ownership to all the results and deliverables from the Services derivable to the Client’s data.
11.1 Infringement Claim
11.1.1 The Supplier guarantees that the Services do not by holding, use, granting or assignment, infringe any third-party rights. The Supplier undertakes, at its own cost, to defend the Client if claims are made or action is taken against the Client regarding the infringement of patent, copyright or other right, on account of use by the Clients of the Services.
11.1.2 The Supplier’s undertakings apply only on the condition that the Supplier, within reasonable time, is informed in writing by the Client of the claim being made or the proceedings being instituted, and that the Supplier may at its sole discretion make decisions regarding the defense in such proceedings, and conduct negotiations for agreement or settlement. The Client undertakes to assist the Supplier in the defense to a reasonable extent and at the Supplier’s expense.
11.2 Verified Infringement
11.2.1 If infringement is finally found to have occurred, or if, according the Supplier’s assessment, it is likely that there has been such infringement, the Supplier shall, at its own expense, either ensure the Client’s right to continue to use the Services, or replace that part which constitutes infringement with another part that the Client can reasonably accept, and of which use does not cause infringement, or modify it so that there is no infringement.
11.2.2 If the Supplier does not fulfil this duty within a reasonable period of time in accordance with the above, the Client shall be entitled to a reduction of the price corresponding to the reduced value of the Services resulting from the infringement, and to damages.
11.3 Limitation of the Supplier’s Liability
11.3.1 The Supplier is not liable for infringement claims based on the Clients Data.
12.1 The Supplier’s undertakings
12.1.1 The Supplier undertakes not to divulge to any third-party any information that comes to the Supplier’s knowledge under the scope of the Services, with regard to the Client’s business or operations, or information concerning any third-party. The same applies for the conveyance of such information to any unauthorized person within the Supplier’s organization. The Supplier further undertakes to supervise that employees or other engaged persons do not convey such information to any third party.
12.1.2 The Supplier is only entitled to use information from the Client for the performance of the Supplier’s obligations under this contract.
12.1.3 The Supplier’s obligations cover all information, of technical, business or any other nature, irrespective of whether such information is documented or not. The Supplier is entitled to divulge information concerning the Client, if to do so is necessary according to any law, court order or the order of a competent authority.
13. DATA SECURITY
13.1 The Client is entitled to request from the Supplier a written description of the security measures the Supplier takes to protect the Clients data.
13.2 If the Client demands enhanced or supplementary security measures to be taken then the parties shall in good faith agree upon such security measures.
13.3 The Supplier shall, if the Client demands, without undue delay, and at the costs of the Client, furnish to the Client all Client Data and all the results and deliverables from the Services. The Supplier shall certify in writing that all originals and copies of such material in its possession or control have been destroyed.
14. AUDIT AND INSPECTION RIGHTS
14.1 The Supplier shall permit the Client’s own internal audit or an independent auditor appointed by the Client to audit it and its subcontractors to confirm the Supplier’s compliance with this Contract.
14.2 The Supplier shall allow and see to that its subcontractors allow inspections from competent authorities and must allow financial supervisory authorities and other relevant authorities to receive information and otherwise execute the powers of control and supervision conferred upon it by law.
14.3 The Client shall give the Supplier ten (10) business days’ notice of the audit and an estimate of the duration thereof.
14.4 Each Party shall bear its own costs of any of the audits set out herein.
15. DEFECTS AND SHORTCOMINGS
The Supplier shall, after a complaint from the Client, remedy any Defects or Shortcomings without undue delay and at its own expense. The Supplier is only liable for Defects or Shortcomings that the Client reports to the Supplier without undue delay after having noticed the shortcoming or fault, or in every case no later than one (1) month after the Service was delivered.
A party is liable for damages caused to the other party as a result of fault or negligence. A party’s total compensation liability as a result of the Services is, apart from the result of gross negligence, intent or infringement according to clause 12.1, limited to six (6) months of the agreed fee for the Services. A party shall not be liable for loss of profits, loss of production, reduced turnover in business and similar costs or losses, or indirect damages. Demands for damages shall be presented within three (3) months following the date upon which the basis of the action commenced.
17. FORCE MAJEURE
If a party is prevented from fulfilling its commitments in accordance with this Contract, by circumstances beyond its control that it could not reasonably be expected to have foreseen, and the result of which the party could not reasonably be expected to have avoided or overcome, such as lightning, strike, labor conflict, fire, altered decisions by authorities, intervention by authorities and faults or delays in services from a subcontractor on account of circumstances stated, this shall constitute grounds for exemption involving extension of the time limit for performance or exemption from liability. Any party, that invokes exemption in accordance with the above, shall inform the other party hereof without delay.
18.1 For Reason
18.1.1 Either party may terminate the Services Contract upon written notice with immediate effect in the event that the other party: a) materially breaches its obligations under the this Contract, and such breach is incapable of remedy, or if the breach is capable of remedy, and the party does not remedy the breach within thirty (30) days of notice from the other party of such breach; or b) becomes bankrupt, ceases payments, applies for company reconstruction, goes into liquidation or otherwise may be considered to be insolvent.
18.2 Other Reason
18.2.1 If not otherwise agreed the Services may be terminated by the Client with six (6) months’ notice after an initial commitment period.
18.3 Effects of Termination
18.3.1 If this Contract is terminated (for whatever reason) during the implementation, i.e. before the Day of Delivery, then on the day on which this Contract ceases: a) all work shall cease; and b) the Supplier shall without undue delay furnish to the Client all Client Data and all the results and deliverables from the Services in its, or any of its subcontractors, possession.
18.3.2 If the Client terminates this Contract after the Day of Delivery (for whatever reason) the Supplier is entitled to compensation for any agreed Services performed up until the day of termination.
18.3.3 Termination must be made in writing to be valid and shall be addressed to the other party’s Contact Person.
19.1 Assignment Unless otherwise agreed, a party may not assign its rights or obligations under this Contract to any third party without the other party’s prior written consent.
19.2 Governing Law
The Services Contract shall be governed by and construed in accordance with the substantive laws of Denmark.
19.3.1 The parties shall use their best endeavors to settle any dispute emanating from this Services Contract by negotiation. If such dispute cannot be settled by negotiations within three (3) weeks (or other period the parties mutually agree upon) from the request for such negotiations in writing, either party may elect to submit the dispute for resolution by arbitration in accordance with the following clauses.
19.3.2 Any dispute emanating from this Services Contract shall be finally determined by arbitration at the Danish Institute of Arbitration (Copenhagen Arbitration).
19.3.3 If the value of the object of dispute does not exceed EUR 25,000, the Arbitration Institute’s Rules for Expedited Arbitrations shall apply.
19.3.4 If the value of the object of dispute exceeds EUR 25,000, the Rules of the Danish Institute of Arbitration shall apply. If the value of the object of dispute exceeds EUR 25,000 but not EUR 250,000, the Arbitration Board shall consist of one arbitrator. If the value of the object of dispute exceeds EUR 250,000, the Arbitration Board shall consist of three arbitrators.
19.3.5 The value of the object of dispute includes the claimant’s request in the Request for Arbitration and any counterclaim submitted by the Respondent in it