Unless otherwise defined or the context otherwise requires, capitalised terms used in the Agreement shall have the following meaning:
Agreement means an Order, these T&Cs, and any applicable Product Terms.
Charges means the charges for the Services and Solutions set forth in the Order.
Clause means any clauses in the Agreement.
Cloud Services means the services set out in the applicable Product Terms provided by Responsibly under the Agreement in relation to a specific Solution, including Customer's right to access and use a Solution.
Commencement Date means the date when Responsibly makes the Solution(s) and the Services available to Customer as set out in the Order.
Confidential Information has the meaning ascribed to it in Clause 21.
Consultancy Services means the consultancy services provided by Responsibly to Customer under the Agreement.
Customer has the meaning ascribed in the Order.
Customer Data means any data, content, materials, video, graphics, recordings, or text, including Personal Data, which the Customer provide(s) to Responsibly through its use of the Solutions and the Services.
Effective Date has the meaning ascribed in the Clause 16.1.
Intellectual Property Rights means (i) industrial and intellectual property rights throughout the world, including all copyrights, mask works, moral rights, rights affording protection similar to copyright, rights in databases, letters patents, patent rights, utility models, and rights in inventions, semi-conductor topography rights, trade marks, trade dress, rights in internet domain names and website addresses and other rights in trade names, registered designs, design rights, know-how, trade secrets and other rights in confidential information, including under marketing legislation, (ii) applications for registration, and the right to apply for registration, for any of the rights listed in item (i) whether or not registered or registerable, including all granted registrations and all applications for registration, in any country or jurisdiction, and (iii) all other rights having equivalent or similar effect in any relevant country or jurisdiction in the world.
Order means the written order entered into between the Parties.
Parties means Customer and Responsibly collectively.
Party means either Customer or Responsibly.
Personal Data means any information to an identified or identifiable person in accordance with art. 4(1) of Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Product Terms means any specific terms related to a specific Solution (and related Cloud Services) provided by Responsibly to Customer (as updated from time to time by Responsibly).
Responsibly has the meaning ascribed in the Order.
Services means the Cloud Services and the Consultancy Services collectively.
Solution(s) means the solutions Customer has subscribed to under the Order.
T&C means these general terms and conditions.
1.1. Responsibly shall provide Customer with access to the Solutions and deliver the Services to Customer as set out in the Order and in accordance with the terms and conditions of the Agreement.
1.2. To the extent Customer wishes to purchase additional services or subscribe to other solutions delivered by Responsibly, the Parties shall enter into a new agreement governing such additional purchase.
1.3. The Order shall be governed by the terms and conditions of these T&Cs, unless explicitly deviated from or supplemented in the Order or in the Product Terms (if applicable).
2.1. Unless stated otherwise in the Order, and in accordance with the terms and conditions of the Agreement, Responsibly, in consideration for the Charges, hereby grants to Customer a non-exclusive, non-transferrable, non-sublicensable, revocable, worldwide right and license to access the Solutions and use the Cloud Services during the Term solely for Customer’s internal business purposes and in accordance with the Agreement.
2.2. The access to the Solutions and the use of the Cloud Services in accordance with Clause 2.1 is limited by the scope of the subscription rights set out in the Order.
2.3. Customer acknowledges and agrees that it will not use the Solutions or Cloud Services to form part of a service bureau or outsourcing offering by Customer to third parties.
2.4. The Solutions licensed under the Agreement may incorporate an electronic repossession device that Responsibly may activate if Customer does not pay all Charges. Customer understands that the electronic repossession device will prevent the Solutions from operating until such Charges have been paid.
2.5. In order to make use of the Solutions and Cloud Services Customer acknowledges and agrees that it must provide the data pertaining to the relevant Solution or Cloud Service and comply with the technical requirements for the relevant Solution or Cloud Service. The necessary data and technical requirements as of the Effective Date are set out in the applicable Product Terms.
2.6. Customer shall not,
(i) sell, resell, distribute, rent or lease the Cloud Services save as permitted under this Clause 2;
(ii) use the Solutions to store or transmit infringing, libelous or otherwise unlawful or tortious material, or store or transmit material in violation of third-party privacy rights;
(iii) interfere with or disrupt the integrity or performance of any Solution, Cloud Service or third-party data contained therein; and
(iv) reverse engineer or decompile the Solutions save as permitted by applicable law.
2.7. Responsibly may suspend Customer's access to the Solution and Services, with or without notice, at any time if, Responsibly in its reasonable opinion believes that Customer or its users have violated any provision in the Agreement.
3.1. The Cloud Services are described in the Product Terms.
3.2. Regardless of any further development, Responsibly will in all material respects maintain the existing core functionality of the Solutions as of the Effective Date.
3.3. Customer may propose changes to a Solution and/or Services, including development of new functionality, however, any changes to or development of a Solution or Services shall be at Responsibly's sole discretion.
3.4. The Solutions will automatically be updated by Responsibly at no additional charges when new versions, updates, service packs, releases or hot-fixes are available, thus Customer will always be upgraded to the latest version of the applicable Solution without prior notice and without consent (One Version Policy) to ensure that Customer is always using the newest and most secure version of the Solutions. Such new versions, updates, etc. will be subject to the terms and conditions of the Agreement and considered an integrated part of the applicable Solution. However, see also Clause 3.5.
3.5. Responsibly may develop new modules, features or products, which, at Responsibly's sole discretion, may be separately marketed and priced, and which are not part of the Solutions or Services already purchased by Customer under the Order.
3.6. Responsibly may amend the Product Terms (e.g. in case of changes to a Solution or Service). In case of material changes, Responsibly will provide prior written notice to Customer and Customer shall be entitled to terminate the applicable Solution or Service for convenience with immediate effect within 30 days following Customer's receipt of such notice.
4.1. Responsibly may subcontract all or part of the Services without Customer's prior written consent. Furthermore, Responsibly may change a sub-supplier without obtaining Customer's approval.
4.2. The subcontracting will not relieve Responsibly of its obligations under the Agreement. Responsibly shall be responsible for all acts and omissions of its sub-suppliers as if they were Responsibly’s own.
4.3. Not withstanding Clause 4.2, to the extent Responsibly uses material sub-suppliers, (e.g. to provide cloud infrastructure services), the liability caused by use of such material sub-suppliers' shall be subject to the limitations set out in the terms and conditions of the material sub-suppliers. Responsibly shall pass through to Customer any compensation received under warranties and indemnities offered by the material sub-supplier. If more customers have been affected, such compensation shall be distributed between the affected customers. Material sub-suppliers are set out in the Product Terms (as updated from time to time).
5.1. The Parties may agree that Responsibly shall deliver Consultancy Services to Customer. Such Consultancy Services shall be described and agreed in a separate statement of work entered into between the Parties governing such additional services but governed by the terms and conditions of these T&C, unless explicitly deviated from or supplemented in such statement of work.
5.2. As between the Parties, Responsibly reserves all right, title and interest in and to all Intellectual Property Rights and other rights, title and interest to the deliverables resulting from the Consultancy Services and such may, at Responsibly's sole discretion, be made generally available in the Solutions (to other customers), at no additional charges or separately marketed and priced.
5.3. The usage restrictions and Customer obligations set out in Clauses 2.3, 2.5 and 2.6 shall also apply to the deliverables resulting from the Consultancy Services delivered by Responsibly to Customer.
5.4. Responsibly shall deliver all Consultancy Services on a commercially reasonable efforts-basis.
6.1. As between the Parties, Responsibly reserves all right, title and interest in and to all Intellectual Property Rights and other rights, title and interest in the Solutions and Services, any improvements, design contributions or derivative works thereto and all data generated by the use of the Solutions and Services.
6.2. In case third-party software or data is incorporated into the Solutions or Services by Responsibly, the third-party’s terms relating to such third-party software or data will apply to such third-party software or data if the third-party is listed in the applicable Product Terms. It is Customer’s responsibility to ensure it complies with such third-party terms. If Responsibly's agreement with any third-party software or data provider is terminated (i.e. also third-party providers not listed in the Agreement), Responsibly shall endeavor to replace the third-party provider with a provider of similar third-party data or software. If Responsibly cannot replace the third-party provider and such third-party data or software is material for Customer's use of a Solution or Service, Customer shall be entitled to terminate such Solution or Service for convenience with immediate effect.
6.3. Further, Customer may be required to enter into direct agreements with third parties to use certain third-party functionality or services and such functionality or services will not be governed by this Agreement. Customer acknowledges and accepts that Responsibly will not in any way be liable for such third parties, functionality or services.
6.4. Customer owns and shall retain all right, title, and interest in and to the Customer Data. Customer represents and warrants that none of the Customer Data violates the Agreement and that it has all necessary right, title, interest and consent necessary to allow Responsibly to use Customer Data for the purposes of fulfilling its obligations under the Agreement.
6.5. For the avoidance of doubt, Customer will not have any ownership of any data provided by a third-party (including Customer's suppliers) or Responsibly as part of the Solution or Services. Unless otherwise agreed in writing, any right for Customer to use such data shall be time-limited and non-exclusive and expire together with the Agreement.
7.1. Responsibly shall comply with mandatory regulatory requirements under applicable law generally applicable to Responsibly as an IT provider.
7.2. Customer shall be responsible for ensuring compliance with any local or industry specific regulatory requirements and for informing Responsibly of any such requirements and how to implement them in the Solutions and Services, if required. However, Responsibly is not obliged to implement such local or industry specific regulatory requirements in the Solutions or Services.
8.1. Customer will comply with any (trade) sanction laws applicable and, in particular any law enforced by the US, the United Kingdom, Denmark and/or the EU.
8.2. Responsibly shall be entitled to terminate the Agreement with immediate effect for convenience in the event that the provision of the Solution and/or Services to Customer will place Responsibly in non-compliance with any (trade) sanction laws applicable and, in particular any laws enforced by the US, the United Kingdom, Denmark and/or the EU.
9.1. If Responsibly shall process Personal Data on behalf of Customer, the Parties shall enter into a data processing agreement. To the extent applicable, Responsibly will at all times comply with all applicable Data Protection Laws, in relation to all Personal Data to which it has access in the course of performing its obligations under the Agreement.
10.1. Responsibly may, at its expense and no more than once every 12 months, appoint its own personnel or an independent third party (or both) to verify that Customer's use of the Solutions and Services comply with the terms of the Agreement. Customer shall provide all reasonable information and assistance requested by Responsibly.
10.2. In the event that Customer's use of a Solution or a Service is in violation of the Agreement, e.g. in relation to usage restrictions, Customer shall immediately settle underpayment on the basis of the current Charges and Customer shall pay all reasonable expenses incurred by Responsibly related to such audit. In addition, Responsibly is entitled to claim additional losses and damages recoverable under applicable law.
11.1. The Charges for Customer's subscription to Solutions or Services are specified in the Order.
11.2. The Charges are fixed during the initial term. Responsibly may change or modify the Charges upon 90 days prior written notice to Customer to take effect at the expiration of the initial term at the earliest. Customer's continued use of the Solutions and Services after the expiration of the 90 days following Customer's receipt of such notice shall constitute Customer's acceptance of and agreement to be bound by Responsiblys modified Charges for the Solutions and Services.
12.1. Charges for Solutions and Services will be invoiced as set out in the Order. In the absence of such regulation, invoicing will take place annually in advance and Responsibly will invoice Customer any additional Charges based on Customer's actual use of the Solutions and Services following the expiration of the year.
12.2. Any invoice shall be paid no later than 30 days from the date such invoice was issued.
12.3. In case of delayed payment, Responsibly is entitled to interest at the rate of 1.5 % per commenced month on the outstanding amount from the due date until the date of payment.
12.4. All Charges are exclusive of VAT.
12.5. Customer is responsible for any local usage, valued added, or other tax levied by a taxing authority with jurisdiction over Customer. Fees paid to Responsibly are exclusive of any such taxes and Responsibly shall have no obligation to calculate or pay any such fees for which Customer may be liable, provided however, that Responsibly may charge Customer sales tax for any goods or services and in any jurisdiction in which Responsibly is obligated to do so.
13.1. During the Term, Responsibly warrants that:
(i) it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the Agreement; and
(ii) Responsibly complies with law applicable to Responsibly.
13.2. The warranties above do not apply to defects or errors which are results of deliverables from Customer or third parties for which Customer is responsible.
13.3. Responsibly shall at its expense remedy any breach of the warranties in Clause 13.1 in accordance with the maintenance requirements set out in Clause 3.
13.4. Except for the warranties set forth in Clause 13.1, Responsibly disclaims all warranties, express or implied, as to any matter whatsoever, including with respect to the Solutions and the Services, and including the warranties of merchantability, fitness for a particular purpose, non-infringement, completeness, security, quality, accuracy, performance, and fitness of use.
13.5. Without limiting the foregoing, Responsibly disclaims all warranties, express or implied, that the Solution, its content or any services or items obtained through it will be accurate, reliable, error-free or uninterrupted, that defects will be corrected, that the Solution is free of viruses or other harmful components or that the Solution or any Services or items obtained through it will otherwise meet Customer's needs or expectations.
14.1. The aggregate liability of a Party under the Agreement shall in no event exceed an amount equal to 100 % of the total Charges paid by Customer in the twelve (12) months period preceding the date of the first claim made for the Solution (including Cloud Services) or Consultancy Service in question. The above limitation of liability shall not apply to Charges payable by Customer.
14.2. The limitation of liability will apply to any and all liability irrespective of the basis of liability, i.e. damages, proportionate reduction, penalties, and indemnity.
14.3. The Parties shall not be liable for indirect losses or consequential damages of any kind, including, but not limited to, loss of profits, loss of business or revenue, loss of goodwill or data, or loss related to processing of Personal Data unless otherwise provided in the Agreement.
14.4. The Parties agree that any damage and loss incurred by a Party due to liability arising from (i) fraudulent misrepresentation, willful misconduct or gross negligence, or (ii) personal death or bodily injury shall not be limited in any way by Clauses 14.1 and 14.3 or by any other Clause of the Agreement.
15.1. A Party shall indemnify the other Party in respect of fines, penalties, damages awarded or any settlement amount agreed and reasonable legal and other professional fees and any other documented cost incurred by or awarded against the relevant Party in connection with (i) a third-party claim relating to infringement of third-party intellectual property or other rights, including patents and copyrights with respect to hardware, software and other materiel provided by or through the other Party under the Agreement and (ii) breach of the confidentiality obligations in Clause 21.
15.2. The obligations under this Clause 15 in relation to third-party claims are conditional upon (a) the Party against whom a third-party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party's failure to provide or delay in providing such notice shall not relieve a Party of its obligations under this Clause 15 except to the extent such failure or delay prejudices the defense; (b) the Party who is obligated hereunder to defend a claim having the right to fully control the defense of such claim; and (c) the Party against whom a third-party claim is brought reasonably cooperating in the defense of such claim. Neither Party shall undertake any action in response to any infringement or alleged infringement that is prejudicial to the other Party's rights.
16.1. The Agreement becomes effective when the Order is signed by both Parties (the "Effective Date"). The Commencement Date and initial term are set out in the Order.
16.2. Following the expiration of the initial term, either Party is entitled to terminate the Agreement in whole or in part for convenience with a written notice of at least ninety (90) days.
17.1. A Party may terminate the Agreement for cause, in whole or in part, immediately or by giving up to thirty (30) days' written notice of termination to the other Party if one or more of the following circumstances occurs:
(i) The other Party commits a breach of the Agreement, which is not insignificant, and, provided the breach is capable of remedy, the Party in question has failed to remedy that breach within thirty (30) days following receipt of a written notice from the other Party to do so; and/or
(ii) The other Party commits a material breach of the Agreement, which is not capable of remedy.
17.2. Any failure by Customer to pay outstanding invoices shall always be considered a material breach by Customer provided that Responsibly has sent one reminder granting a period of at least thirty (30) days to settle the outstanding invoice.
17.3. In the event of termination or expiry of the Agreement, howsoever occurring, Responsibly shall upon Customer's request provide all necessary termination assistance until a copy of all Customer Data has been transferred to Customer or a replacement service provider designated by Customer in the same format as Customer Data was delivered to Responsibly. Further, if Responsibly has collected information from Customer's suppliers on behalf of Customer, Responsibly can assist with a copy of such data to Customer to the extent reasonably possible and subject to any usage restrictions from the suppliers. Any termination assistance to be delivered by Responsibly shall be chargeable by Responsibly on a time and material basis. Subject to Customer's payment of the Charges, Responsibly shall be obliged to continue its provision of the Services temporarily until such successful transfer has been achieved.
17.4. Termination of the Agreement shall not affect either Party’s rights and duties under Clauses 2.3, 2.6, 5.2, 6, 14, 17.4, 18 – 26, and all defined terms shall survive.
18.1. The Agreement supersedes all prior agreements and understandings between the Parties with respect to the Solutions and the Services.
18.2. If any Product Terms apply to a Solution or a Service provided by Responsibly to Customer, such specific terms shall take precedence over these T&Cs.
19.1. If any term in the Agreement is found by competent judicial authority to be unenforceable in any respect, the validity of the remainder of the Agreement will be unaffected, provided that such unenforceability does not materially affect the Parties' rights under the Agreement.
19.2. An effective waiver under the Agreement must be in writing signed by the Party waiving its right. Hence, the failure of a Party to exercise any right or remedy to which it is entitled will not constitute a waiver of such right or otherwise cause a diminution of the obligations created by the Agreement, unless explicitly agreed to in writing. Furthermore, a waiver by either Party of any instance of the other Party's noncompliance with any obligation or responsibility under the Agreement will not be deemed a waiver of subsequent instances.
20.1. Either Party is entitled to suspend the performance of its obligations without incurring liability for damages under the Agreement if and to the extent that such performance is impossible due to extraordinary circumstances beyond the reasonable control of such Party and such circumstances could not have been foreseen and avoided, including by virtue of business continuity plans, contingency plans, disaster recovery plans or other similar preventive measures.
20.2. The Party claiming to be affected by any circumstance referred to in Clause 20.1 shall, without undue delay, notify the other Party of the intervention and of the cessation of such circumstance.
20.3. Notwithstanding any other provisions of the Agreement, either Party is entitled to terminate the Agreement with immediate effect by written notice to the other Party if it is clear from the circumstances that the performance of the Agreement will be and is suspended under Clause 20.1 for more than 30 days.
21.1. The Parties shall not, apart from what is required by applicable law or by any court or other authority of competent jurisdiction, make use of, except for the purposes contemplated by the Agreement, disclose to any third party or publish any Confidential Information received by one Party from or in respect of the other Party under or in connection with the Agreement. The receiving Party will use the same care and discretion to avoid disclosure, publication, or dissemination of the disclosing Party’s Confidential Information as the receiving party uses with its own Confidential Information, but in any event, no less than a reasonable standard of care.
21.2. For the purpose of the Agreement, "Confidential Information" means a Party's trade secrets as well as other commercial and operational information and knowhow and any other information not generally known or reasonably ascertainable.
21.3. This Clause 21 shall not apply to information that is: (a) in the public domain through no fault of the receiving Party; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) is independently developed by the receiving Party without use of the disclosing Party’s disclosed non-public, confidential, or proprietary information.
21.4. The provisions of this Clause 21 apply during the Term of the Agreement and for a period of three (3) years following the expiration of the Agreement.
22.1. Responsibly is allowed to name Customer as a client for reference purposes in its marketing efforts and may strictly for the purpose thereof use Customer's tradenames and logos.
23.1. Any changes to the Agreement shall be included in an amendment to the Agreement and shall be agreed in writing by the Parties.
24.1. Responsibly is entitled to assign its rights and obligations under the Agreement to a third-party without Customer's approval, however, Customer is not entitled to assign any of its rights under the Agreement.
25.1. Each Party shall bear its own costs and expenses incurred in connection with the Agreement and the transactions contemplated herein, including, without limitation, all fees of its counsel and accountants.
26.1. The validity, interpretation, and performance of the Agreement shall be governed by the laws of Denmark disregarding any choice of law principles.
26.2. Any dispute arising out of or in connection with this contract, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced.
26.3. The arbitral tribunal shall be composed of three (3) arbitrators unless the Parties agree on one (1) arbitrator who shall be appointed by the institute. In the event the arbitral tribunal shall be composed of three (3) arbitrators, each party appoints an arbitrator and the institute appoints the chairman of the arbitral tribunal. If a party has not appointed an arbitrator within thirty (30) days after having respectively requested or received notice of the arbitration such arbitrator is appointed by the institute.
26.4. The language of the tribunal shall be English, and the place of arbitration shall be Copenhagen, Denmark.
26.5. The Parties shall keep the arbitration proceeding, the subject thereof as well as any award confidential.