DELOGUE STANDARD TERMS
Welcome to www.delogue.com.
1.1 Delogue (as defined below) offers a cloud-based multi-tenant product lifecycle management (PLM) platform and certain associated services and products (jointly referred to as “Delogue Services”, as further defined below).
1.2 The PLM platform is offered through the website www.delogue.com and is marketed under the name “Delogue PLM”.
1.3 The Platform (as defined below) may only be used by professionals and for pre-authorized professional education purposes by educational institutions. All private use and non-authorized education purposes is strictly prohibited.
1.4 The terms (as defined below) together with the Form of Agreement entered into between the Client (as defined below) and Delogue contain the terms and conditions that govern all use of the Delogue Services.
1.5 If not already accepted separately in writing by the Client, the Terms shall be deemed accepted by the Client and each by User (as defined below) on the Client’s and the User’s individual behalf, by logging in to the Platform and/or by otherwise using the Delogue Services (in whole or in part). The Terms are subject to change from time to time. These Standard Terms are available at www.delogue.com/terms-of-service in the latest and applicable version.
1.6 Delogue may, in its sole discretion, elect to suspend or terminate access to, or use of the Delogue Services to anyone who violates the Terms.
1.7 If you register for a free trial of the Delogue Services, the applicable provisions of the Terms will govern that free trial.
1.8 The original language of the Terms is English. Delogue may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
2.1 The following capitalized expressions shall throughout the Terms have the meaning assigned to them here below, unless otherwise specifically so stated.
2.2 Account: The primary means for accessing and using the Platform and the Delogue Services, subject to payment of a License Fee designated by the selected Plan. Client must designate Users based on purchased Licenses, determine Authorizations etc. through the administration options available on the Platform in the Client’s Account;
2.3 Agreement: The Form of Agreement, the Terms and the Data Processing Agreement entered into between the Parties;
2.4 Authorization: The set of rights and privileges on the Platform assigned to a User by a Client;
2.5 Client: The legal entity which has entered into an agreement with Delogue for provision of the Delogue Services; as recorded in the Form of Agreement;
2.6 Client Data: Files and any other digital data and information, which is the property of the Client and which is provided to Delogue through upload to the Platform or otherwise for the purpose of providing the Delogue Services (including the specific Users, Styles, Items, Suppliers, Tasks, Orders);
2.7 Client IP Rights: Intellectual Property Rights to which Client, its affiliates and/or its third-party vendors and partners (Client’s licensors) hold rights, title and interest or which are operated by Client, its affiliates and/or such licensors at the Effective Date of this Agreement;
2.8 Content: Any data and information available through the Delogue Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
2.9 Data Processing Agreement or DPA: A separate agreement entered into between the Parties, which in accordance with the EU’s General Data Protection Regulation (2016/679) (“GDPR”), article 28, governs the processing of personal data by Delogue on behalf of the Client. The DPA is incorporated into the Terms as Appendix 1 to these Standard Terms and is always available at www.delogue.com/dpa in the latest and applicable version;
2.10 Delogue: Delogue.com ApS, Sorøgade 6, 4., 2100 Copenhagen East, Denmark with company registration number (CVR) 34074445;
2.11 Delogue IP Rights: Intellectual Property Rights to which Delogue, its affiliates and/or its third-party vendors and partners (Delogue’s licensors) hold rights, title and interest or which are operated by Delogue, its affiliates and/or licensors at the Effective Date of this Agreement;
2.12 Delogue Materials: The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, data, and all other elements of the Delogue Services;
2.13 Delogue Services: The Platform, including the Delogue Materials and Content and associated services and/or products available on or through the Platform (such as customs software development and migration services);
2.14 Effective Date (of this Agreement): The date of the last signature to the Form of Agreement entered into between the Parties (at which time a legally binding agreement has been entered into between the Parties);
2.15 Files: Documents of any kind (images, spreadsheets, text files, etc.) that are uploaded to the Platform by the Client, and usually associated with a particular Style, Item or Order;
2.16 Free Trial: Temporary access for the purposes of trying out the Platform and Delogue Services without paying a Fee; all as separately agreed with Delogue;
2.17 Force Majeure: Shall have the meaning assigned to it in Section 20 below;
2.18 Form of Agreement: An agreement-document signed by both Parties in which a.o. the primary commercial details of the Parties’ agreement (such as pricing, number of users, associated services etc.) are described;
2.19 Intellectual Property Rights: Copyrights and related rights, patents, utility models, trademarks, service marks, trade names, topography rights, design rights and rights in databases, domain names, rights in know-how, trade secrets, commercial and technical information (regardless of method of storage) and all applications or pending applications for the above in all cases whether or not registerable in any country and all rights and forms of protection of a similar nature or having equivalent or similar effect anywhere in the world. For Delogue, this includes but is not limited to the Platform, the Delogue Materials and Content. For Clients, this includes but is not limited to the Client Data;
2.20 Licenses: The number of Users that can be added to an Account by the Client;
2.21 License Fee: Regular payment for access to the activated Platform Account(s) according to the applicable Plan;
2.22 License Period: The fixed time of the Client’s subscription to the Platform and Delogue Services as determined in the Form of Agreement (e.g. January 1 to December 31);
2.23 Parties: Client and Delogue (jointly);
2.24 Plan: The Platform is provided by Delogue to the Clients in Plan’s with varying functionalities, user-profiles, options, modules etc. and with different pricing options for the Client to choose between. The Plan determines the option selected by the Client as set out in the Form of Agreement. All available Plans are subject to change from time to time at Delogue’s discretion;
2.25 Platform: The Delogue Product Lifecycle Management (PLM), i.e. Client-supplier data management and collaboration platform available at www.delogue.com (or its subdomains or domains with identical names under other top domains etc.), which consist of an integrated cloud computing solution including applications, software, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
2.26 Standard Terms: Delogue’s standard terms of trading as set out in this document and any operating procedures, policies, guidelines, instructions and similar issued by Delogue on the Platform or otherwise;
2.27 Terms: The Form of Agreement, these Standard Terms and the DPA;
2.28 User: A natural person granted with the Authorization by the Client to use an Account on behalf of a Client. A User may be associated with the Client or a Supplier or collaborator of the Client’s;
3 Modifications to the Standard Terms
3.1 Delogue reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Standard Terms at any time by posting such changes on or through the Platform or otherwise. Please check these Standard Terms periodically for changes. Any continued use of the Delogue Services after such changes have been posted as provided above constitute a binding acceptance of such changes on behalf of both the relevant Client and the User individually.
3.2 Any such amended Standard Terms shall automatically be effective upon the earlier of (i) any continued use of the Delogue Services by the Client or a User, or (ii) 30 days from posting of such modified Standard Terms on or through the Platform or otherwise.
4 Access to the Platform and the Delogue Services
4.1 Establishing an Account. Certain features, functions, parts or elements of the Delogue Services can be used or accessed only by holders of an Account. As such, all Clients must establish an account and designate certain administrators of its account, who can designate Users, manage Authorizations etc. in order to utilize the Platform and utilize the Delogue Services.
4.2 If the Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of the Client when using the Account, including to approve new applicable Standard Terms on behalf of the Client by the Users use of the Delogue Services. The Client shall be responsible for the adherence to the Terms by all Users Authorized by the Client. Delogue is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, Delogue may, in its discretion, request additional information or proof of a User’s credentials. If Delogue is not certain if a User has been granted Authorization by the Client, Delogue may, in its sole discretion, prevent such User from accessing the Delogue Services.
4.3 A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
4.4 The Client and any User associated with an Account must provide Delogue with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
4.5 Access to an Account. Delogue shall provide Client users with a link to activate initial login to its Account unless the Client uses the single sign-on feature or another service to log in. At the initial login the User is forced to provide a personal password. These “Login Credentials” (username and password) must not be used by multiple persons. If the Client has designated several Users, each User will be provided with separate Login Credentials. The Client and each User are responsible for keeping confidential all Login Credentials associated with an Account. The Client must promptly notify Delogue of any disclosure, loss or unauthorized use of any Login Credentials.
4.6 The Client is responsible for managing Autorizations, invite Suppliers into their Account, designation of Users, deletion of User-profiles, deletion of Suppliers etc. in all instances, including in the event of a User’s termination of association with the Client or other grounds for changing User Authorizations or similar. This is managed through the Client’s administration options on the Platform in the Account.
5.1 The use of the Platform and the Delogue Services are subject to certain License Fees (depending on the selected Plan) and other fees; all as determined in the Form of Agreement.
5.2 When entering into an Agreement with Delogue, the Client must select a Plan including an associated License Period. Different rates apply to different Plans. The applicable License Fee is charged in advance at annual payment intervals.
5.3 All License Fees and other charges are non-refundable, i.e. there are no refunds or credits for periods of the License Period where the Client (i) did not use or activate its Account, (ii) used its Account only partially, (iii) deactivated the Account, (iv) terminated these Terms during an ongoing License Period or (v) did not use all the purchased Licenses.
5.4 If, after entering into an Agreement with Delogue, the Client decides to upgrade to a more expensive Plan, including but not limited to adding additional Users, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
6 The License Period
6.1 The License Period shall commence on the earlier of (i) the date of availability of the Delogue Services to the Client, or (ii) the commencement date of the License Period as set out in the Form of Agreement and will remain in effect for the duration of the License Period as set out in the Form of Agreement.
6.2 The License Period shall automatically be extended for a successive period of the same duration as the initially applicable License Period and shall be subject to the same termination and extension provisions as those applicable to the initial period.
6.3 Delogue’s prices and fees applicable at the time of renewal shall apply automatically for any extensions, unless Client specifically terminates the Agreement in accordance with the Terms.
6.4 The Client may terminate the Agreement by giving notice hereof to Delogue in writing not less than thirty (30) days prior to the expiry of the current License Period.
6.5 Upon expiry of the License Period, without an extension, the Client’s access to the Platform and all other Delogue Services shall cease. It is the Client’s responsibility to use the extraction-of-data-options built into the Platform before the end of the License Period.
7 Changing Plans
7.1 The Client has the right to upgrade a current Plan to a more expensive Plan at any time by selecting a new Plan among the collection of Plans offered by Delogue. In such an event, the Client will be charged the applicable License Fees for the upgraded Plan for the current payment interval shortly after such upgrade is agreed (subject to a credit of any prepaid fees as set out in Section 5.4 above).
7.2 The Client has the right to downgrade a current Plan at renewal of a License Period by selecting a new Plan among the collection of Plans offered by Delogue and providing Delogue with a notice hereof in writing not less than thirty (30) days prior to the expiry of the current License Period. In such an event, the Client will automatically be charged the License Fee applicable for the new Plan for any new License Periods following the current License Period. A downgrading of the current Plan may cause the loss of features or capacity of the Account, as well as the loss of Client Data. The Client is responsible to extraction of data to prevent the risk of such loss.
8 Free Trial
8.1 A new Client may be offered a Free Trial. The Client is not required to provide any payment information during the period of Free Trial. When the period of Free Trial has expired, the Account will automatically be deactivated. In order to prevent deactivation (and the risk of loss of Client Data) or to reactivate the Account, the Client is required to enter into an Agreement with Delogue and pay the associated License Fee. If the Client does not pay the Fee within 2 weeks of the expiry of the Free Trial, the Account, including all Client Data therein will be permanently deleted.
9 Educational Access
9.1 Delogue may grant educational institutions (as Clients, with the right to assign students and faculty members as Users and determine Authorizations) access to the Platform and certain of the Delogue Services.
9.2 Unless otherwise specifically agreed, such educational access to and use of the Delogue Services will be subject to the Terms, with the following exceptions:
• that the License Period may be determined unilaterally by Delogue from time to time; and
• that the applicable License Fee for such an “educational Plan” shall be free of charge to the educational institution.
• students must be invited into the Platform using their educational institution email address i.e. not a private or work email account.
9.3 Delogue reserves the right to, at any time and at its absolute discretion, suspend or terminate such educational access with reasonable notice and at the end of an academic year.
10 Payment Terms
10.1 Unless otherwise specifically so stated, all prices, fees and License Fees are exclusive of all taxes, levies or duties (VAT or otherwise), which may or may not be added to such prices, fees and/or License Fees, depending on applicable law and the legal residence of the Client. The Client is solely responsible for the payment of such taxes, levies or duties (VAT or otherwise).
10.2 Payment of the applicable License Fees shall be made in advance for the entire License Period. Delogue will issue an invoice as soon as possible after an Agreement has been entered into with a payment due date on the first of (i) the first day of the License Period, or (ii) the 30th day from the date of the invoice.
10.3 Payment terms of all other prices and fees are 30 days from the date of the invoice.
10.4 Payment shall be made in accordance with instructions included in Delogue’s invoices or as otherwise instructed by Delogue from time to time.
10.5 In case of non-payment for any reason or any violation of the Agreement, Delogue shall be entitled – without liability – to immediately close/inactivate Client’s access to the Service and the service plan in question. Furthermore, Delogue is entitled to charge interest (at 2% per month or pro rata thereof) on any outstanding amount due.
10.6 In case of suspension of an Account or User, Delogue reserves the right to impose a reconnection fee to re-open the Account or User’s access to the Platform and the Delogue Services. The Client agrees and acknowledges that Delogue has no obligation to retain Client Data and that such Client Data will be irretrievably deleted if the Client’s Account is suspended or terminated for 30 days or more.
10.7 Delogue is entitled to adjust the prices, functionality, and modules included in a Plan from time to time. Adjusted prices shall take effect upon the commencement of any subsequent new License Period.
11 Client data
11.1 Uploading Client Data to Platform. If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with the Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users) whether posted and/or uploaded by the Client or User or otherwise made available on or through the Delogue Services. By uploading Client Data to the Platform, the Client authorizes Delogue to process the Client Data. The Client is responsible for ensuring that:
• The Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates these Terms, the rights of Delogue, other Clients or Users, or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful; and
• The Client and all of the Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account.
11.2 No Guarantee of Accuracy. Delogue accepts no responsibility or liability for any information contained in any Client Data, including the correctness or accuracy hereof, and strongly recommend that it is carefully considered what is transmitted, submitted or posted to or through the Delogue Services. The Client and/or User understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that the Client and the User (and not Delogue) is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the Delogue Services, as well as for any actions taken by Delogue or other Clients or Users as a result of such Client Data.
11.3 Unlawful Client Data. Delogue is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of Delogue or if there is a reason to believe that certain Client Data is unlawful, Delogue has the right to:
• Notify the Client of such unlawful Client Data;
• Deny its publication on the Platform;
• Demand that the Client bring the unlawful Client Data into compliance with the Terms and applicable law;
• Temporarily or permanently remove the unlawful Client Data from the Platform, restrict access to it or delete it.
11.4 If Delogue is presented with convincing evidence that the Client Data is not unlawful, Delogue may, at its sole discretion, restore such Client Data, which was removed from the Platform or to which access was restricted.
11.5 In addition, in the event Delogue believes in its sole discretion Client Data violates applicable laws, rules or regulations or the Terms, Delogue may (but has no obligation to) remove such Client Data at any time with or without notice.
11.6 Compelled Disclosure. Delogue may disclose a Client Data and a Client’s other confidential information to the extent compelled by law to do so. In such instance, Delogue will use commercially reasonable efforts to provide the Client with prior notice of the compelled disclosure (to the extent legally permitted) and the Client shall provide reasonable assistance, at its cost, to Delogue if the Client wishes to contest the disclosure. If Delogue is compelled by law to disclose the Client’s confidential information as part of a civil proceeding to which Delogue is a party, and the Client is not contesting the disclosure, the Client will reimburse Delogue for its reasonable cost of compiling and providing secure access to that confidential information.
11.7 Protection of Client Data. Delogue will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Client Data. Those safeguards will include, but will not be limited to, guidelines, training and measures for preventing access, use, modification or disclosure of Client Data by Delogue personnel except (a) to provide the Delogue Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 11.6 (Compelled Disclosure) below, or (c) as a Client or User explicitly permit in writing.
12 The Delogue Services
12.1 Use of the Delogue Services. Subject to the Terms, and the payment of the applicable License Fee and other applicable charges, Delogue, for the duration of the License Period, grants the Client and its authorized Users a non-exclusive, non-transferable, non-sub-licensable license to use the Delogue Services to:
• Collect, store and organize Client Data, such as add new styles and items, invite suppliers, generate reports based on Client Data, add sample requests and monitor their evolvement through the status;
• Add new Users and grant them Authorizations, assign tasks to a particular User;
• Modify, extract and delete Client Data;
• Receive reasonable help and guidance from Delogue regarding the use of the Delogue Services;
• Communicate with product suppliers and other User’s as Client deem necessary.
12.2 Technical Support. Delogue shall provide reasonable technical support to Client and its authorized Users at the reasonable request of the Client within normal business hours (i.e. Monday to Friday 8:30-16:00 GMT+1) at no additional charge, and/or upgraded support (for an additional charge, if applicable), including but not limited to responding to inquiries of support from a Client utilizing the contacts set forth below as soon as reasonably possible.
The contacts for all inquiries of support are:
• E-mail: firstname.lastname@example.org, or
• Other means such as built-in notification through the Platform (where applicable)
12.3 Service Level. Delogue will at all times reasonably attempt to achieve the highest possible availability and shortest possible access time to the Platform, with the exception of (i) planned downtime (of which Delogue will provide advance electronic notice), and (ii) any unavailability caused by circumstances beyond Delogue’s reasonable control, including but not limited to due to a Force Majeure event.
12.4 Notwithstanding the foregoing, Delogue does not provide warranties of any kind, regarding any specific availability or time of access to the Platform.
12.5 The Platform is hosted either by Delogue or a subcontractor of Delogue’s choice; presently by Amazon Web Services.
12.6 All data stored as part of the Service is backed up on a regular basis. If a Client with a paid Plan experience loss of data, Delogue will with reasonable effort attempt to restore data from the most recent working backup; provided, however, Delogue gives no warranties with respect to recovering or restoring any lost Client Data.
12.7 Third-Party Sites, Products, and Services. The Delogue Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, Delogue does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Delogue makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. Access and use of linked sites, including the information, material, products, and services on linked sites or available through linked sites, is solely at the client’s and user’s own risk.
12.8 Delogue integrating 3rd party code. Delogue may integrate 3rd party code in the Platform to optimize performance and speed up the development of new functionalities and as Delogue otherwise sees fit.
12.9 Client Modifications. Delogue may (but is not obligated to do so) from time to time allow the Client to modify the Platform to address Client specific needs (e.g. by adding additional Client specific features). Any such modifications to the Platform performed by the Client itself (and not developed by Delogue) (“Client Modifications”) shall be subject to the prior written consent of Delogue. Notwithstanding anything to the contrary herein, by implementing any Client Modifications, Client acknowledge and agree that Delogue is not in any way responsible for such Client Modifications, including but not limited to the suitability, performance or maintenance of such Client Modifications or their impact on the Platform or the Delogue Services in general, or for any damages or other adverse impact caused by such Client Modifications to the Platform, the Delogue Services or in any other way.
12.10 Modifications to the Delogue Services. Delogue reserves the right to modify the Delogue Services or any part or element thereof from time to time without prior notice, including, without limitation:
• Rebranding the Delogue Services at its sole discretion;
• Ceasing providing or discontinuing the development the Delogue Services , including the Platform (in whole or in part) temporarily or permanently;
• Taking such action as is necessary to preserve Delogue’s rights upon any use of the Delogue Services that may be reasonably interpreted as violation of Delogue’s intellectual property rights, distribution of internet viruses, worms, trojan horses, malware, and other destructive activities or illegal activity.
12.11 As applicable, the Client may be notified of such modifications when logging in to the Account.
12.12 Delogue shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Delogue Services, or any part or element thereof.
13 Prohibited Use of the Platform and Delogue Services
13.1 Access to and/or use of the Platform and any part of the Delogue Services is prohibited (i) for any competitors to Delogue, (ii) if the purpose is to monitor the availability, performance or functionality of the Delogue Services, and (iii) for other benchmarking or competitive purposes.
13.2 Client and its Authorized Users may use the Delogue Services and any part or element thereof only in the scope, with the means and for purposes as identified in the Terms and applicable law. By way of example, neither the Client nor any User may:
• Use the Delogue Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
• Copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Delogue Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that Delogue is not permitted by that applicable law to exclude or limit the foregoing rights;
13.3 Certain Uses Require Delogue Consent. The Client or any User may not, without Delogue’s prior express written consent:
• Sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access to or make the Delogue Services available in whole or in part to any third persons unless such third person is another authorized User of the same Client;
• Use the Delogue Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created and the Client in question’s Plan include rights to;
• Use the Delogue Services or any part or element thereof by means of programs that send them automatic inquiries or requests, unless such program has been made available by Delogue.
13.4 In case of violation of this Section 0, Delogue reserves the right to suspend or terminate access to, or use of the Delogue Services for anyone responsible for such violation, including but not limited to suspending or terminating all Users associated with a Client Account, which has been used for such violation. For the avoidance of doubt, Delogue shall be entitled to payment in full regardless of any such (justified) suspension or termination. Additionally, Delogue shall have full access to all other available remedies under contract or at law.
14 Data Privacy
14.1 Clients and Users are encouraged to limit the amount of personal data entered into the Platform to an absolute minimum and to – to the extent possible – only enter data into the platform about business relevant matters. It is prohibited for Clients and Users to enter any special categories of personal data (according to the GDPR, article 9) into the Platform.
14.2 The Client and its Authorized Users are responsible for ensuring that personal data which is entered into the Platform is correct and kept up-to-date.
14.3 For the purposes of compliance with Article 28 of the GDPR, the Data Processing Agreement enclosed to the Standard Terms shall form an integral part of this Agreement and shall govern Delogue’s processing of personal data on behalf of the Client.
14.4 In the event of conflict or ambiguity between the Terms and the Data Processing Agreement, the Data Processing Agreement shall take precedence.
15 Intellectual Property Rights
15.1 Delogue’s Intellectual Property Rights. Notwithstanding anything to the contrary in this Agreement, Delogue, its affiliates, and licensors (as the case may be) shall retain all rights, title and interest in the Delogue IP Rights. The same applies to information and Intellectual Property Rights developed by Delogue during the performance of the Delogue Services to the Client, regardless of whether or not such development takes place on the basis of information or knowledge provided to Delogue by or on behalf of the Client during the License Period (with the exception of Client IP Rights, cf. Section 15.2 below) (the “New IP Rights”). Delogue grants to Client a royalty free, non-exclusive, non-transferable license to exploit and use the Delogue IP Rights and any New IP Rights (subject to the limitations set in the Terms) to the extent required to utilize the Delogue Services for the duration of the License Period.
15.2 Client’s Intellectual Property Rights. Notwithstanding anything to the contrary in this Agreement, Client, its affiliates, and licensors (as the case may be) shall retain all rights, title and interest in the Client IP Rights. Client grants to Delogue a royalty free, non-exclusive, non-transferable license to exploit and use such the Client IP Rights to the extent required to provide the Delogue Services to the Client for the duration of the License Period.
15.3 Client shall provide the necessary assistance and sign any necessary documents to enable Delogue to acquire registrations of any such New IP Rights anywhere in the world. Subject to prior written notification hereof from the Client to Delogue, Delogue shall reimburse the Client for all reasonable costs incurred in connection with such assistance.
15.4 Except where such information is independently protected by applicable law (e.g. by way of registrations or similar), Sections 15.1 and 15.2 above shall not apply, where such information:
• is already rightfully known to the receiving Party (through means which do not violate the disclosing Party’s Intellectual Property Rights) or is already part of the public domain at the time the information is received; or
• becomes rightfully known to the receiving Party (without an obligation of confidentiality) or becomes part of the public domain before the development of such information by the other Party.
15.5 Client’s or its Users use of the Delogue Services or any parts or elements thereof do not grant the Client with any rights, title or interest in the Delogue IP Rights and/or New IP Rights beyond what is specifically herein stated.
15.6 Any commercial or promotional distribution, publishing or exploitation of the any Delogue IP Rights and/or New IP Rights is strictly prohibited, without the prior written consent from Delogue or the otherwise applicable rights holder.
15.7 Client Data. Delogue may use Client Data in an aggregated or anonymized format for research, educational, business development and other similar purposes. Delogue may not otherwise use or display Client Data without Client’s written consent. Delogue respects Client’s right to exclusive ownership of the Client Data. Except as set out in the first and last sentences of this Section 15.7 or as otherwise specifically permitted by Client, Client’s use of the Delogue Services do not grant Delogue the license to use, reproduce, adapt, modify, publish or distribute the Client Data for Delogue’s commercial, marketing or any similar purpose. The Client expressly grants Delogue the right to use and analyze aggregate system activity data associated with use of the Delogue Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the Delogue Services operate, and to create new features and functionality in connection with the Delogue Services in the sole discretion of Delogue.
15.8 The client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the Delogue Service. In connection with Client Data, the Client affirms, represents, and warrants that: (i) the Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions under all applicable Intellectual Property Rights to use and authorize Delogue to display or otherwise process and use the Client Data in a manner consistent with the intended features of the Delogue Services and the Terms, and to grant the rights and license set forth in Section 15.7, and (ii) Client Data, Delogue’s or any Delogue licensee’s use of such Client Data pursuant to the Terms, and Delogue’s or any Delogue licensee’s exercise of the license rights set forth in Section 15.7, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any moral right, privacy right, right of publicity, or any Intellectual Property Right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by Delogue or any Delogue licensee to any third party for the performance of any Delogue Services the Client has chosen to be performed by Delogue or for the exercise of any rights granted in the Terms, unless the Client and Delogue otherwise specifically agree.
15.9 Feedback. If the Client or a User provides Delogue with any comments, bug reports, feedback or modifications for the Delogue Services (“Feedback”), Delogue shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Delogue Services. The Client or User (as applicable) hereby grants Delogue a perpetual, irrevocable, non-exclusive, royalty-free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose, including for Delogue’s commercial purposes.
16 Disclaimers; No Warranty
16.1 UNLESS OTHERWISE EXPLICITLY STATED BY DELOGUE, THE PLATFORM, THE DELOGUE SERVICES, THE DELOGUE MATERIALS, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELOGUE SERVICES (WHETHER DEVELOPED BY DELOGUE OR A THIRD PARTY) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DELOGUE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
16.2 UNLESS OTHERWISE EXPLICITLY STATED BY DELOGUE, DELOGUE AND ITS AFFILIATES DO NOT WARRANT THAT THE DELOGUE SERVICES, THE DELOGUE MATERIALS AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELOGUE SERVICES (WHETHER DEVELOPED BY DELOGUE OR A THIRD PARTY) WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE DELOGUE SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELOGUE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
16.3 UNLESS OTHERWISE EXPLICITLY STATED BY DELOGUE, DELOGUE AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE DELOGUE SERVICES, DELOGUE MATERIALS, AND ANY CONTENT, CLIENT DATA, SERVICES OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELOGUE SERVICES (WHETHER DEVELOPED BY DELOGUE OR A THIRD PARTY) OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
16.4 THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
17.1 The Client hereby agree to defend, indemnify and hold harmless Delogue and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of the Clients or its Users use or misuse of the Delogue Services, representations made to Delogue, its affiliates and/or third parties, violation of the Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Delogue reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you the Client is required to indemnify Delogue, and the Client and its Users agree to cooperate with in full with Delogue in the defense of such claims.
18 Limitation of Liability
18.1 No Liability. Delogue shall not be liable to the Client or User for any consequences resulting from:
• Any modifications in the Terms, calculation and rates of License Fees, the Delogue Services or any part or element thereof, including any error, permanent or temporary interruption, discontinuance, suspension or other types of unavailability of the Delogue Services;
• Deletion of, corruption of, or failure to store any Client Data;
• Use of Client Data by the Client or any of the Users associated with the Account;
• The Client upgrading or downgrading the current Plan;
• Any disclosure, loss or unauthorized use of the login credentials of the Client or any authorized User;
• The Client’s use of the Account or the Delogue Services by means of browsers other than those accepted or supported by Delogue;
• The application of any remedies against the Client or authorized Users by Delogue, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the Delogue Services or any part or element thereof;
• The differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the Delogue Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
• Delogue’s application of the remedies described in the Terms or available at law, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, Delogue and its affiliates shall not be liable to the Client for any claim by any User, or third parties against the Client arising out of the Client’s failure to:
• Provide Delogue with accurate information about the Client, Users or Account;
• Notify Delogue of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
• Ensure the lawfulness of the Client Data;
• Obtain the necessary rights to use the Client Data; or
• Abide by any of the restrictions described in the Terms.
18.2 General Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DELOGUE AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PROVISION OF THE DELOGUE SERVICES AND THE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT FOR THE DELOGUE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
18.3 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY INDIRECT LOSSES UNDER APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO THE FOLLOWING (WHETHER CONSIDERED DIRECT OR INDIRECT LOSSES UNDER APPLICABLE LAW): LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
18.4 SHOULD THE FOREGOING DISCLAIMERS, LIMITATIONS AND EXCLUSIONS OF LIABILITY BE PROHIBITED BY LAW, THEY SHALL BE INTERPRETED TO BE MODIFIED TO THE LEAST POSSIBLE EXTENT TO BRING IT IN COMPLIANCE WITH APPLICABLE LAW WITH A VIEW TO MAINTAINING THE PURPOSE OF THE RELEVANT PROVISION AND THE RISK ALLOCATION OF THE AGREEMENT TO THE LARGEST EXTENT POSSIBLE.
19 Termination of the Agreement
19.1 The Client may terminate the Agreement in accordance with Section 6.4 above.
19.2 Notwithstanding Section 19.1, the Client may cancel its Delogue Account at any time with immediate effect. If you wish to cancel your Delogue Account, you may send an email to email@example.com. Notwithstanding the foregoing, DELOGUE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OF USE OF THE SERVICE, NOR FOR ANY ALREADY ACCRUED LICENSE FEES AND OTHER CHARGES, CF. THE TERMS.
19.3 Upon termination – regardless of the reason therefore – Delogue is entitled to delete all Client Data, upon the expiry of thirty (30) days following the effective date of such termination.
19.4 The Delogue Services include access to a standard extraction of Client Data function. It is the Client’s own responsibility (e.g. by way of instructions to its Users) to utilize this function and extract any Client Data it wishes to retain prior to the expiry of the thirty (30) days mentioned above. If the Client and/or a User require Delogue’s assistance in extracting data, Delogue is entitled to request payment, at Delogue’s standard rates for such work.
19.5 If either party is in material breach of these Terms, the other party is entitled to terminate these Terms for cause, provided the terminating Party has first given the breaching party a written notice of default (with specification of the alleged material breach) of no less than thirty (30) days, and provided that the breaching party has not within such notice period remedied the breach specified in the notice.
19.6 For the avoidance of doubt, any termination by either of the parties or the expiry of the term of the Agreement shall only have effect for the future and shall have no retroactive effects. Notwithstanding the above, the rights and obligations in Sections 6, 12, 14, 15, 16 and 17, 21 (confidentiality) shall stay in full force and effect after said expiry or termination of the Terms.
20 Force Majeure
20.1 Delogue is not to be responsible for non-performance due to situations or conditions which fall under Force Majeure or the effects thereof. For the purposes of these Terms, “Force Majeure” shall mean situations or conditions that are outside the reasonable control of Delogue, including but not limited to acts of God, war, riot, civil unrest, uprising, acts of terror, strike, lock-out, fire, flooding, natural disasters, earthquake, monetary restrictions, act of government, import/export embargoes, strike or other labor problem, interruption of electronic traffic, internet service provider failure or delay, interruptions or breakdowns in energy or communication supplies, attacks of computer viruses, attacks by hackers and force majeure of subcontractors.
21.1 Neither Party may disclose any Confidential Information to any third parties, except as may be required to perform the obligations of each Party under this Agreement or as may be authorized in advance by the other Party. Upon termination or expiry of this Agreement, each Party shall return to or delete all Confidential Information to the disclosing Party.
21.2 Each Party shall ensure that similar provisions and requirements to this confidentiality clause are incorporated in any subcontract and that the officers, employees and agents of each Party and of any subcontractor comply with the same.
22 General Provisions
22.1 Relationship of the Parties. The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and Delogue, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
22.2 Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. The validity and enforceability of the remaining Terms, conditions or provisions, or portions of them, shall not be affected.
22.3 Entire Agreement. The Terms shall constitute the entire agreement between the Client and Delogue regarding the Client’s use of the Delogue Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
22.4 Assignment. Neither Party may, directly or indirectly, in whole or in part, assign or transfer this Agreement or delegate any of its obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, either Party, or its permitted successive assignees or transferees, may assign or transfer this Agreement (in whole or in part) or delegate any rights or obligations hereunder without the consent of the other Party: (ii) to any entity controlled by, or under common control with the assignor/transferor, or its permitted successive assignees or transferees; or (ii) in connection with a merger, reorganization, transfer, sale of assets, product lines or its business as such (in whole or in part), or change of control or ownership of the Client, or its permitted successive assignees or transferees.
22.5 No Waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
22.6 Notices. Except as otherwise specified in these Terms, all notices related to this Agreement shall be in writing and will be effective upon (i) personal delivery, (ii) the fifth business day after mailing, or (iii) the time of sending by email. Billing-related notices to the Client will be addressed to the relevant billing contact designated by the Client. All other notices to the Client will be addressed to the relevant system administrator designated by the Client.
23 Governing Law and Dispute Resolution
23.1 This Agreement shall be governed by Danish law, without regard to the choice or conflicts of law provisions.
23.2 Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the district court of Copenhagen, Denmark as the court of first instance.
Last revision: November 26, 2020.