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bmetric Terms and Conditions from January 2018
These Bmetric Terms and Conditions (hereinafter to be called: 'Terms') together with those other documents as referred to in i.e. a signing page or Agreement attached to these Terms comprise the terms and conditions under which Bmetric will provide Customer with a License, with Maintenance Services, and under which Bmetric will render Services to Customer.
The following notions in these Terms and related documents will have the following meaning.
'Agreement': a signed agreement between the Parties, these Terms, the attached annexes and any document
referred to, as may be amended from time to time.
'ASP Services': all services to be made available in any way by Bmetric and/or activities to be carried out (and Works resulting from such services) of whatever nature for Customer.
'Documentation': official Bmetric manual(s) and/or release notes with respect to the Software.
'Error': an error/fault in the Software that means that such Software does not meet the Software Description in a substantial way. It will only concern such Errors if they can be shown and reproduced by Customer.
'Force Majeure': an event which is beyond the reasonable control of the Party liable to effect performance, including act of God, fire, flood, storm, war, military action, riot, civil commotion, terrorism, epidemic, explosion or malicious damage, strike, lockout or labour disputes.
'Known Error': a Reported Error which is already known to Bmetric and for which Bmetric develops or has already developed, as the case may be, a solution.
'License': a limited, non-exclusive, non-transferable right to use the Software, solely on behalf of the normal, internal operating of business of Customer and
under the conditions as stated in these Terms.
'Party' or 'Parties': Customer and/or Bmetric.
'Patch': a Software release developed by Bmetric on the basis of a Known Error if Bmetric has decided that such Known Error has such consequences for Customer that a software modification is necessary within a short period and has not yet proceeded to issuing a Minor Release or Service Pack.
'Platform': the software platform that is operated by Bmetrics hostingpartner, and that will be made available to the Customer as a service via the internet under this Agreement.
'Remuneration': the amounts and remuneration(s) due by Customer to Bmetric as counter-performance on account of the Agreement or as described in these Terms, as the case may be.
'Reported Error': an Error reported immediately, in detail and in writing by Customer to Bmetric.
'Services': all services to be made available in any way by Bmetric and/or activities to be carried out (and Works resulting from such services) of whatever nature for Customer.
'Service Pack': a set of software modifications (mostly a collection of Patches'), which are made available by Bmetric from time to time.
'Software': all software of Bmetric including Software Description and Documentation to be made available and/or already made available by or on behalf of Bmetric and all Patches, Service Packs, Minor Releases and Major Releases that could be made available to Customer or have already been made available if Customer is entitled to Maintenance Services.
'Software Description': functional specifications of the Software.
'Work-around': a method indicated by Bmetric to avoid or by-pass, as the case may be, the consequences of a
Known Error to the extent possible, without issuing thereto a Patch, so that Customer's use of the
Software may be interrupted as little as reasonably possible.
'Working Day': a calendar day from 09:00 a.m. until 05:00 p.m., except for weekends and national holidays in Denmark.
'Works': all the work result generated by or on behalf of Bmetric and intellectual property rights with respect to that work that result directly from Services performed by or on behalf of Bmetric.
1. Services and Term
1.1 The ASP Services will be delivered for an initial period as specified in the Agreement (Initial Term), commencing on the Effective Date, unless otherwise agreed. The provision of the Services will be automatically extended for a similar period as the initial period, each after the expiry of the Initial Term unless otherwise agreed or unless a Party terminates the Agreement, in accordance with Article 12.
2.1. Under the conditions of the Agreement and after and against payment of the Remunerations, Bmetric will give the Customer a limited, nonexclusive, and non-transferable right to use the Software covered by the Agreement for the agreed upon term.
3. Maintenance & Support
3.1. Bmetric will deliver Maintenance Services to Customer as expressed in article 3. The date of commencement of the Maintenance Services will be the Effective Date.
3.2. Bmetric will make commercially reasonable efforts to ensure ASP Services are consistently and promptly delivered.
3.3. Within the scope of the provisions of article 3.1 Bmetric will deliver to Customer on Working Days and without any extra costs the following Maintenance Services:
- Service Packs;
- Minor Releases;
- Major Releases;
- Release notes to each Release, and;
- Software support by telephone or email to maximally two (2) contact persons of Customer.
3.4. Maintenance Services do not include, in any case any activities and/or acts that have arisen by, or are related in any way to outside causes.
3.5. All activities carried out beyond the scope of the Maintenance Services (as described in article 3) and/or Software and/or Documentation delivered or to be delivered, as the case may be, will be charged by Bmetric to Customer in accordance with the prices and rates of Bmetric customary at that moment at Bmetric. Bmetric will not be obliged to render any such supplementary Services.
4. Reporting & Verification
4.1 Bmetric will keep record of use of the Software, including details of visitors calls and other relevant information. Bmetric will upon request furnish to Customer a copy of the report updated up to that moment.
5. Intellectual property rights
5.1. All rights of intellectual property of Customer to information and/or goods (also including software) of Customer are and will remain rights of Customer. All rights of intellectual property of Bmetric to information and/or goods (also including software) of Bmetric are and will remain the rights of Bmetric.
5.2. Bmetric is exclusively entitled to the Software and the intellectual property rights to the Software including phone numbers / tracking numbers delivered by Bmetric together with the software. Customer will not obtain thereto any rights and/or other powers, unless explicitly described otherwise in the Agreement.
6. Confidential Information
6.1 Both Bmetric and Customer will treat all information that they each obtain from the other Party with respect to the Software as well as commercial, strategic, technical data, informations about the Customer customers, knowledge and/or other information (hereafter Confidential Information) connected with that other Party strictly confidential and will not make announcements about this to third parties.
6.2 The obligation of non-disclosure shall survive termination or expiration of the Agreement. In addition the obligation of non-disclosure is with no time limit.
6.3 It shall solely be allowed to deviate from the provisions in article 6.1, if (i) the deviation in question has been explicitly provided for in the Agreement, (ii) the information in question was already generally known without any breach of confidence by a Party or any third party before the Agreement was realised, (iii) the prior written permission of the Party concerned was obtained, and/or (iv) the information in question must be made public to satisfy a mandatory decision to that extent of a legal authority, in which case the Party concerned will inform the other Party in advance.
6.4 Unless otherwise agreed, each Party may divulge that Customer has bought the Services and/or Software, and Bmetric may describe its activities on account of the Agreement in its marketing materials in general, non-confidential terms. Customer agrees furthermore that within one month after the Agreement concerned has been realised Bmetric may issue a press release in that case.
7. Security of processing
7.1 When administrating personal information for the Customer, Bmetric acts on the instructions from the Customer.
7.2 Bmetric is required to implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration or unauthorized disclosure or access and against all other unlawful forms of processing in accordance with the Danish rules and Directive 2016/679/EU on protection of individuals with regard to the processing of personal data and on the free movement of such data.
8.1 Bmetric warrants that the ASP Services shall perform substantially in accordance with the provisions of this Agreement.
8.2 In the event that Customer discovers a documented Error in the ASP Services, Bmetrics sole responsibility shall be to use commercially reasonable efforts to correct such Errors in a timely manner. This warranty does not apply to any Errors which result from problems in the interaction of any Bmetric software with third party software.
8.3 Repair or replacement, as the case may be, of mutilated or lost data will not fall under the warranty.
8.4 Bmetric does not warrant that the Software will operate without any interruption and/or Errors, nor does Bmetric make any warranty as to any results that may be obtained by use of the ASP Service.
8.5 The warranty set forth in the paragraphs 8.1-8.4 is the only warranty made by Bmetric. Bmetric expressly disclaims and Customer hereby expressly waives, all other warranties, express or implied, including, without limitation, warranties of fitness for a particular purpose. The ASP Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Bmetric is not responsible for any delays, delivery failures, or other damage resulting for such problems. Bmetric’s limited warranty set forth in the paragraphs 8.1-8.4 is in lieu of all liabilities or obligations of Bmetric for damages arising out of or in connection with the use of the Software or Services. Except for the above limited warranty, the entire risk as to the quality and performance of the Software is with the Customer.
9. Payment and Remunerations
9.1 Remunerations, prices and rates are expressed and will be payable in Danish Kroner (DKK) or Euro (EUR) and will be exclusive of VAT withholding taxes, and other levies imposed on account of the authorities, if any.
9.2 The Agreement specifies the subscription fee for an anticipated monthly user volume range (base tier) and the term length of the Agreement.
9.3 All invoices of Bmetric will be paid integrally and not later than 14 (fourteen) days after the date of the invoice. Payment must be paid without any settlement, deduction, discount and/or suspension. Objections, if any, against Remuneration(s) charged must be made known to Bmetric in writing before the maturity date of the invoice concerned.
9.4 If Customer does not pay any amounts as those fall due then, – without any further declaration default being necessary – (i) Customer will owe on the overdue amount an interest of two (2) percent per month, and (ii) Bmetric (except for the other rights it is entitled to) will be authorised to suspend execution of the Agreement.
9.5 Bmetric reserves the right to adjust the applicable Remunerations, rates and prices per contract year within reasonable limits. If this adjustment concerns an increase that is higher than the index figure for wages (per hour including special remunerations) category Private businesses, as published by the Statistics Denmark (www.dst.dk), Bmetric will notify the increase to Customer not later than 1 (one) calendar month prior to the expiry of the Initial Period (or any extension thereof to take effect from commencement of any extension of the Initial Period.)
10.1 In no event shall Bmetric be liable for any special, incidental, or consequential damages whatsoever (including, without limitation indirect loss, damage for loss of business profits and corrupted or lost data) arising out of the use of inability to use the APS Services, even if Bmetric has been advised of the possibility of such damages. In any case Bmetrics entire liability under any provision of this Agreement shall be limited to the amount exclusive VAT actually paid by Customer under the Agreement for use of the ASP Service in the 6 (six) month period immediately preceding the event giving rice to such claim.
10.2 A right of Customer to compensation will only arise if Customer has informed Bmetric accordingly in writing within thirty (30) days or within thirty (30) days after Customer could discover in reason the arising thereof.
11. Force Majeure
11.1 If either Party is prevented from complying with its obligations under this Agreement by a Force Majeure Event then such party shall not be in breach of this Agreement nor liable for any failure or delay in performance of any its obligations. If the Force Majeure Event continues for more than one months, either Party may terminate this Agreement affected by the Force Majeure Event by giving written notice to the other Party.
12.1 The term of each subscription is as specified in the applicable Order Form. Except if other is specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or 1 (one) year (whichever is shorter), unless either party gives the other notice of non-relnewal at least 30 (thirty) days before the end of the relevant subscription term.
12.2 The Agreement can be terminated by Bmetric with immediate effect, without any further declaration of default to Customer if Customer fails in (timely) observing any obligation on account of the Agreement (including but not limited to payment of amounts due by the Customer).
12.3 Each Party will be entitled to terminate the Agreement with immediate effect, without any further declaration of default and without any prior legal intervention, by registered letter if the other Party (i) becomes insolvent, enters into liquidation (whether voluntary or otherwise), becomes unable to pay its debts as they fall due or any event analogous to any of the foregoing occurs to that other Party; and/or (ii) ceases or threatens to cease carrying on its business.
12.4 Termination of this Agreement shall terminate all rights and licenses granted to Customer relating to the ASP Services. Upon termination, Bmetric will close the access to the ASP Service.
12.5 Articles 5, 6 and 9 through 13 will remain in force, without prejudice to any termination of this Agreement.
12.6 When the customer terminates an agreement with Bmetric all phone numbers used for tracking and call-in, provided by Bmetric, has a retention time of one month. The first 14 days it is routed to the customer. The rest of the month a message will be played saying the number is no longer in use.
13. Other Provisions
13.1 The Customer must not use the Software (i) in any way that is unlawful, illegal, fraudulent or harmful; or (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
13.2 End user computer hardware, internet connectivity, and any other third-party services not provided by Bmetric but used in conjunction with the ASP Service are the responsibility of the Customer and are not covered in any way by this Agreement.
13.3 The cost of any system modifications or enhancements, software, or service that are necessary for Customer to access or use the ASP Service are the sole responsibility for Customer.
13.4 The laws of Denmark exclusively apply to and govern the Agreement and these Terms. The application of the Convention on Contracts for the International Sales of Goods (April 1980) is hereby explicitly excluded. All disputes arising in connection with the Agreement, these Terms and related matters (‘Disputes’), and which cannot be solved through amicable negotiations, shall be exclusively and finally settled by the courts of Denmark.
Version 1.3 january 2018