Structure
These Terms and Conditions apply to and are incorporated by reference into the Purchase Order made by and between Gaiup and the Customer (as identified on the Purchase Order) and sets forth the terms and conditions for access and use of the software solution described in the Service Description under a software as a service model.
The terms and conditions for provision of Services are set out in the following documents:
- The Purchase Order
- The Terms and Conditions as available at www.realtimelca.dk/Pricing or on such other webpage as Gaiup may notify to you.
In case of conflict between the documents referred to above, a term contained in a document high on the list shall take precedence over a term contained in a document low on the list.
The Purchase Order is governed by and subject to these Terms and Conditions and all referenced documents listed above. These documents collectively constitute the agreement (the "Agreement") between Gaiup and the Customer. Gaiup and the Customer are collectively referred to as the "Parties" and individually as a "Party".
Terms not defined in this clause 1 have the meaning ascribed to them in clause 2.
Definitions
"Applicable Laws" means all applicable laws, regulations, requirements or orders which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory or administrative functions.
"Authorized Users" means those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services in accordance with the Subscription described in the Purchase Order.
"Background IPR" means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Gaiup or the Customer prior to, or otherwise outside of and unrelated to, the scope of these Terms and Conditions.
"Billing Cycle"has the meaning given in the Purchase Order.
"Confidential Information" means any information concerning Gaiup and the Customer that may reasonably be considered as proprietary or confidential, whether in a tangible or intangible form, and whether or not designated by a Party as proprietary or confidential, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data, software, source codes, valuations, costs, rates, and prices and any other information of a proprietary or confidential nature relating to the disclosing Party or its business, as well as any information created or derived from any such information, irrespective of disclosing medium and storage.
"Customer" means you, the legal entity who has entered into an Agreement for certain Services by signing and accepting the Purchase Order.
"Customer Data" means data inputted by the Customer, Authorised Users, or Gaiup on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services and any data generated by, or derived from, the Customer's use of the Services.
"Consequential Loss" – means, whether or not foreseeable at the date of this Agreement, any:
- special, exemplary, incidental, punitive, consequential or indirect loss or damage; and
- any loss of earnings, loss of profit or anticipated profit and loss of production and/or deferral of production, loss of product, loss of revenue, losses arising out of any business interruption, loss of anticipated cost savings, loss related to third party claims, loss or corruption of any Customer Data and the consequences thereof, loss of use (i.e. spread cost) in each case whether direct or indirect.
"Documentation " means the documents, including the Service Description made available to the Customer by Gaiup which sets out a description of the Services, including maintenance and support, and the user instructions for the Services.
"Effective Date" has the meaning set out in the Purchase Order.
“Gaiup” means the supplier of the Services; incorporated under the laws of Denmark and registered in the Danish Company Register (CVR) under the no. 43646486 with its main establishment at Wildersgade 10B, 2, 1408 Copenhagen K.
"Improvements" means any and all modifications, improvements, or further developments of Software.
"IPR" means intellectual property rights of any kind existing now or in the future anywhere in the world, whether registered or not, and all applications, renewals, extensions of, and rights to apply for the same, including without limitation, patents, trademarks, design rights, copyright, publishing rights, moral rights, database rights, service marks, logos, business names, domain names, trade names, and other rights in goodwill, know-how, trade secrets, and other protected material, each in any form or format, including without limitation any and all intellectual property rights in and to any inventions, new technology, reports, data, data structures, databases, calculations, documents, drawings, sketches, specifications, equipment, algorithms, heuristics, computer programs, and source codes for software and all other intellectual property rights, and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection.
"Services" means cloud-based services provided to the Customer via the website notified to the Customer by Gaiup, as more particularly described in the Service Description.
"Purchase Order" means the individual order form where specification of purchased Services and other commercial terms agreed between the Parties is stated.
"Service Description" means the descriptions of the Services, including the service levels and user restrictions.
"Software" means software applications owned by Gaiup or licensed by Gaiup from third parties. The term Software refers to Real-Time LCA software, including the website www.realtimelca.dkand covers revised versions and updates.A description of the software application shall be maintained and made available to the Customer upon new updates.
"Sub-Contractor" means a supplier, contractor, vendor, agent or independent consultant of any tier selected and retained to fulfil the Agreement on behalf of Gaiup.
"Subscription" means the right to access and use the Services either (i) under an ongoing capacity subscription model or (ii) under a pay per project model, as set out in the Purchase Order.
"Subscription Fee" means the subscription fees payable by the Customer to Gaiup for the Subscription, as set out in the Purchase Order.
"Term" has the meaning set out in clause 13.1.
The Services
Gaiup shall render and supply to the Customer the Services as stated in the Purchase Order and subsequent written amendments to the Agreement from time to time and as agreed between Gaiup and the Customer.
Under the restrictions of the purchased Services, the Customer accepts to use the Services for their intended use only, which for the avoidance of doubt is stated in the Service Description.
The Customer shall procure at its cost, install and maintain all required enabling software and third-party software required to access and use the Services, such as the 3D modelling software applied and/or the necessary complementary plugin. The Customer acknowledges that a failure to do so may impact its use of the Services.
Grant and use
Right to access the Services
On the terms and conditions of the Agreement, the Customer is granted a limited, non-exclusive, payable, non-transferrable, revocable user right, without the right to sublicense, via rights of access granted to the Customer's Authorised Users, to access and use the Services and the Documentation during the Term.
The grant of this right and license is subject to the Customer's compliance with this Agreement, including the Documentation and any other documents referenced in, or attached to, these Terms and Conditions, the Documentation, or a Purchase Order.
Gaiup confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
Subscription
In relation to the Subscription, the Customer undertakes that:
- the number of projects and/or the capacity measured in number of square meters shall comply with the specifications in the Purchase Order;
- it shall permit Gaiup or Gaiup's designated auditor to audit the Services, or use Gaiup's requested software reporting to verify that the Customer's use of the Services does not exceed the number and volume restrictions specified in the Purchase Order;
- if any of the audits referred to in clause 4.2(b) reveal that the Customer has underpaid Gaiup for its use of the Services, then without prejudice to Gaiup’s other rights, the Customer shall pay to Gaiup an amount equal to such underpayment as calculated in accordance with the prices set out in the Purchase Order; and
- the Customer's Authorised Users may only access the Services via the methods specified in the Service Description.
The Customer is responsible for all acts and omissions of each Authorised User and any and all use of the Services using each Authorised User's access credentials.
Restrictions
The Customer's use of the Services shall be restricted to the Customer's own use only, which for the sake of clarity shall not include access by any other than the legal entity identified as the Customer to create a project. While external parties can without limitations be invited to join an existing project.
The Customer shall not, directly or indirectly, except as explicitly stated in these Terms and Conditions, sublicense or transfer the rights granted to it under the Agreement.
Except as explicitly stated in these Terms and Conditions, the Agreement shall not grant the Customer any right or license to the Services, or any other IPR or property of Gaiup, and no license or other rights shall be created by implication or estoppel. In particular, but without limiting the generality of the foregoing, no right or license in or access to executable code or source code to Software is granted hereunder.
The Customer shall comply with the Service Description and shall not itself nor permit any others to:
- modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of any Services in any way; or
- prepare any derivative works of the Services, or reproduce, distribute, sell, or resell Software or other Services in any manner or for any purpose.
The Customer shall be responsible for safeguarding the Customer's password and any other credentials used to access its account. Credentials shall not be shared with third parties.
Suspension
Gaiup may, without prejudice to any other rights or remedies available to it, suspend the Customer's access to, or use of, the Services in whole or in part immediately on notice to the Customer if:
- the Customer has failed to pay any amounts due to Gaiup in accordance with clause 6;
- the Customer is otherwise in breach of its obligations under the Agreement;
- there is an attack on the Services used by the Customer or if Customer Data is accessed or manipulated by a third party without the Customer's consent;
- Gaiup is required by Applicable Law to suspend the Customer's access to, or use of, the Services; or
- Gaiup reasonably believes that the suspension of the Services is necessary to protect its infrastructure, network or the use of the Services by other customers because of a threat to the security, integrity or use of the Services.
Gaiup shall use reasonable endeavors to re-establish or permit access to the Services as soon as possible following Gaiup's determination that the cause of the suspension has been resolved.
Gaiup shall have no liability whether under this Agreement or at law to the Customer for any exercise of its rights pursuant to this clause 5.
Fees and payments
Fees for the Services
The Customer shall pay to Gaiup any fees for the Services that the Customer subscribes to or receives, in accordance with the pricing and payment terms agreed in the Purchase Order.
Fees paid by the Customer are non-refundable unless otherwise expressly stated in the Purchase Order.
All amounts due to Gaiup under this Agreement shall be paid in accordance with the payment terms specified in the Purchase Order.
Late payment interest
If the Customer fails to make any payment when due, then, without limiting the Customer’s remedies under clause 6.3 and clause 13, Gaiup shall from the first day of delayed payment be entitled to interestat interest rate specified in the Danish Interest Act.
Payment default
If overdue fees including interest have not been paid within sixty (60) calendar days of the due date, Gaiup may send the Customer a written notice stating that the Agreement, including these Terms and Conditions, shall be terminated because of the Customer's breach unless settlement has taken place within thirty (60) calendar days of receipt of the notice.
Termination for breach shall not take place if the Customer settles the overdue fee, including interest, prior to the expiry of the deadline.
Subscription changes and revising of fees
Changes to the Customer's Subscription
If at any time the Customer wishes to change or extend its Subscription beyond the scope defined in the Agreement and Gaiup accepts such changes, such changes shall be set out in an amendment to the Agreement signed by Gaiup and the Customer and made part of the Agreement.
Revising of fees
Gaiup is entitled to revise fees as follows:
- Upon an email notification to the Customer, the Subscription Fees are with immediate effect automatically changed once a year on [January 1] to reflect increases in accordance with [PCE Price Index] indicated by the percentage increase in the index.
- In addition, Gaiup is entitled to adjust the Subscription Fees above the percentage increase in the index subject to 30 days’ written notice. If the increase under this clause 7.2b)is material and not acceptable by the Customer, the Customer is entitled to refuse such increase by terminating the Agreement upon 30 days’ notice, irrespective of any agreed non-terminability.
Modification to the Services
Gaiup is entitled to make commercially reasonable changes to the Services from time to time.
Gaiup shall announce if it intends to (i) discontinue, or (ii) make backwards incompatible changes to the functionality of the Services, and such changes may be announced in the communicating channels designated by Gaiup or as described in the Services Descriptions.
Service Levels
Gaiup shall use reasonable endeavors to secure uptime and provide incident management and support pursuant to the service levels described in the Service Description. Gaiup is entitled to make changes to the service levels from time to time.
IPR, Improvements, and Customer Data
Ownership of the Services
Each of Gaiup and its third-party licensors (which for the avoidance of doubt exclude the Customer) is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services.
Background IPR
Each Party is and shall remain the sole and exclusive owner of all right, title, and interest in and to its own Background IPR and this Agreement does not affect such ownership. No rights to the other Party's Background IPR are acquired under this Agreement unless expressly stated. For the avoidance of doubt and without limiting the generality of the foregoing, the Services shall be considered Gaiup's Background IPR.
Improvements
Gaiup shall upon creation be, and shall remain, the sole and exclusive owner of all Improvements and any and all IPR related thereto. Gaiup shall have the right to use and commercialize any Improvements at its discretion without any restrictions whatsoever.
Retained ownership to Customer Data
The Customer shall, except if otherwise agreed, retain ownership to Customer Data.
To enable Gaiup to provide the Services, the Customer grants to Gaiup a non-exclusive right and license to copy, exploit, process, store, transmit and use the Customer Data solely to the extent necessary to provide the Services.
Gaiup shall not use Customer Data for any purpose other than for the delivery of the Services or as otherwise explicitly permitted herein, and Gaiup shall, upon the expiration or termination of the Subscription and upon the Customer’s request delete or destroy all copies of Customer Data stored on any computer or other device or which are otherwise in Gaiup’s possession or control, except to the extent Gaiup is required to retain such Customer Data by Applicable Laws or as part of bone fide back-up procedures.
Use of Customer Data
For Gaiup to continue the development of the Software and other new software and technologies, the Customer hereby grants to Gaiup a fully paid, royalty free, unlimited, sublicensable license to use, in an anonymized format, the information provided by the Customer, and information regarding the Customer's use of the Services, for the purpose of product and feature developments, to provide support, compile statistical reports and record insights into usage patterns. For the avoidance of doubt, no confidential information of the Customer shall be disclosed by Gaiup in relation thereto.
Infringements
If the Services infringe any third party's IPR, then any claim from such third party shall be referred to Gaiup in accordance with clause 11.2.
Confidentiality
All Confidential Information shall be treated as confidential and shall not be disclosed by the receiving Party to any third party, or used by the receiving Party for any other purpose than for which it is disclosed, without the written consent of the disclosing Party unless such Confidential Information:
- is already known by rightful means to the receiving Party at the time the information was received;
- is or becomes part of the public domain other than through a fault of the receiving Party;
- is received from a third party without an obligation of confidentiality of which the receiving Party was or should have been aware;
- is required by Applicable Laws, governmental, or other public authority regulation or decision, or ordered by a court of law.
Where the circumstances set out in clause 10(d) apply, the receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose. The receiving Party shall exercise its best efforts to obtain reasonable assurances that confidential treatment shall be accorded such Confidential Information.
Without prejudice to the foregoing, (i) the receiving Party may disclose Confidential Information to a third party to the extent necessary for the performance of the Services, provided that the receiving Party shall procure that such third party shall be bound by such confidentiality obligations at least as onerous as set out in this clause 10, and (ii) Gaiup is entitled to name the Customer as a user of the Services for reference purposes in its marketing efforts, and may strictly for the purpose thereof reproduce the Customer's tradenames and logos.
The receiving Party shall ensure that Confidential Information shall be handled securely and shall be stored in locked files. Electronically stored information shall be inaccessible to unauthorized personnel.
Indemnities
Consequential Loss indemnification
Each Party shall be responsible for and shall save, indemnify, defend and hold harmless the other Party from and against any and all claims in respect of Consequential Loss arising from, relating to or in connection with the Agreement irrespective of cause and even if the relevant claims arise from or are contributed to in whole or in part by the fault or negligence of any form or degree, willful misconduct, strict liability, breach of contract, breach of duty (whether statutory or otherwise), breach of representation or warranty, breach of any relevant laws or any other failure of any nature of the indemnified party or any other person or entity seeking to rely on an indemnity, release or other contractual right or obligation or an exclusion or limitation of liability hereunder, or any other entity, person or party and shall apply irrespective of whether a claim is based in tort, breach of contract or otherwise at law.
IPR indemnification
Gaiup shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any IPR in force as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
- Gaiup is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to Gaiup in the defense and settlement of such claim, at Gaiup’s expense; and
- Gaiup is given sole authority to defend or settle the claim.
In the defense or settlement of any claim, Gaiup may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement with seven (7) calendar days’ notice to the Customer and in such event, Gaiup’s liability shall not exceed an amount equal to a pro-rated refund for any Subscription Fees paid in advance for the period after the date of the termination, and shall thus not be liable for any additional liability or other additional costs to the Customer.
In no event shall Gaiup, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than Gaiup;
- the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Gaiup; and/or
- the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Gaiup or any appropriate authority.
The abovementioned shall constitute the Customer’s sole and exclusive rights and remedies and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability in regards to infringement of IPR or any other intellectual property rights.
Indemnification conduct
A Party shall promptly notify the other Party if it receives a claim that the other Party shall be obliged to indemnify. Whenever possible, the other Party shall take over the defense of the claim. The Parties shall promptly give each other information and other assistance needed for handling the claim. The indemnified Party shall not compromise or settle or otherwise dispose of a claim, in whole or in part, without the written consent of the other Party.
Warranties and limitations of liability
Warranties
Gaiup warrants that the Services shall comply in all material respect with the Service Description and that it shall provide the Services with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the Services.
In the event of breach of warranty, Gaiup shall re-perform the Services, and if Gaiup again fails to re-perform the Services in line with these Terms and Conditions, the Customer may terminate the Agreement, but only if the breach is material, and only in accordance with the procedure in clause 13.
Except as expressly provided in these Terms and Conditions and to the extent permitted by Applicable Laws, the Services shall be provided "as is" and Gaiup does not make warranties of any kind, express, implied, or statutory, including those of merchantability, fitness for a particular purpose, or any warranty regarding the availability, reliability or accuracy of the Services.
Limitation of liability
In no event shall Gaiup be liable towards the Customer under or in connection with these Terms and Conditions or the subject matter contemplated hereunder, including, without limitation, the Services, whether in tort, contract, or otherwise for Consequential Loss.
Gaiup shall not be liable for the transfer of data over communications facilities, including the internet, and any limitations, delays, and other problems inherent in the use of such communications facilities.
The Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Gaiup shall have no liability for any damage caused by errors or omissions in any information, instructions, Customer Data or scripts provided to Gaiup by the Customer in connection with the Services, or any actions taken by Gaiup at the Customer's direction.
Notwithstanding anything else to the contrary in this Agreement, the Parties expressly agree that Gaiup’s maximum total aggregate liability to the Customer for any and all breaches of the terms of this Agreement (including but not limited to any repudiatory breaches) or in relation to any other act, fault or omission connected with this Agreement and any claims arising therefrom, in tort, contract or otherwise at law shall in all circumstances whatsoever be limited to either (i) 100% of the Subscription Fee amounts agreed to be paid by the Customer for use of the Services during six (6) months prior to the event giving rise to the liability or (ii) 100,000 DKK, whichever is lower (the “Liability Cap"). For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident. The Customer shall, regardless of cause, defend, indemnify and hold harmless Gaiup from and against any and all claims of any nature whatsoever exceeding the Liability Cap.
Term and Termination
Term
These Terms and Conditions enter into force on the Effective Date and shall remain in force unless terminated earlier in accordance with the terms of the Agreement (the "Term"). Termination notice depending on the Subscription model (ongoing capacity subscription vs. pay per project) is described in the Purchase Order.
Termination for breach
A Party is entitled to terminate the Agreement by written notice to the other Party if the other Party is in material breach of the Agreement and fails to remedy the breach within thirty (30) days following written notice of breach from the other Party.
If the material breach from the Customer is not possible to remedy, Gaiup may terminate the license grant set out in clause 3 with immediate effect.
For the avoidance of doubt, any termination of the license grants as set out in these Terms and Conditions is without liability to Gaiup, and such termination does not release the Customer from any payment obligation, nor does it entitle the Customer to any refund, unless expressly stated in these Terms and Conditions.
Termination for insolvency
A Party is entitled to terminate the Agreement with immediate effect, including these Terms and Conditions, by written notice to the other Party if:
- an order is made, or a resolution is passed for the winding up or insolvency of the other Party, or the other Party makes an assignment for benefit of creditors generally, or a receiver or administrator is appointed to its assets, or any similar process is put into effect, or the other Party suspends payment of its debts or is unable to pay its debts as they become due; or
- the other Party files for bankruptcy, becomes insolvent, or makes a general compromise or arrangement with its creditors.
Effect of termination
If the Subscription terminates or expires, for whichever reason, the license grant set out in clause 3 terminates simultaneously. Customers project data can be exported and delivered on request.
In case of the Customer’s termination for breach, Gaiup shall refund fees paid in advance, pro-rated with reference to the effective date of the termination. Repayment of fees shall be the Customer's sole remedy and Gaiup's sole liability.
Any release, indemnity or any obligation of confidence under this Agreement is independent and survives termination of the Agreement. Any other term and condition that by its nature is intended to survive termination of this Agreement survives termination of this Agreement unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the Party giving the indemnity.
Notices, Governing Law, and Dispute Resolution
Notices
The Parties’ contact details to which direct notices shall be sent under the Agreement are set out in the Purchase Order.
Governing law
Any dispute arising out of or in connection with the Agreement shall be exclusively governed by and construed in accordance with the laws of Denmark, without giving effect to any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Good shall not apply.
Dispute resolution
The Court of Copenhagen Denmark shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement in the first instance.
Assignment prohibition
The Customer shall not assign any right or obligation pursuant to this Agreement unless agreed between the Parties.
Updates to the Terms and Conditions
Gaiup is entitled to update these Terms and Conditions and the Documentation to reflect changes in Applicable Laws, modifications to the Services, or for any other legitimate and reasonable reason. The Customer will be notified of updates via the Customer’s email address provided in the Purchase Order.
No Partnership
Except in the event of the Parties entering into a specific written agreement to this effect, nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorize either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Force majeure
If an extraordinary situation should arise which is outside the control of the Parties, and which makes it impossible for the Parties to fulfil their obligations under the Agreement, the affected Party shall notify the other Party of this as soon as reasonably practicable. Such an extraordinary situation shall include war, cyberattack, strike, lockout, riot, epidemic, pandemic, and natural catastrophes such as flood, earthquake, hurricane, volcanic eruption, and sandstorm (force majeure). The obligations of the affected Party shall be suspended for as long as the force majeure prevails.
Each Party shall keep each other fully informed of actual and expected effects, if any, of any force majeure, and the expected duration of the force majeure event.
Where a force majeure has occurred, the other Party may only terminate the Agreement (i) with the consent of the affected Party, or (ii) if the force majeure lasts or is expected to last for more than ninety (90) calendar days from the date on which the situation arose, and in such case only with fifteen (15) calendar days’ notice. Each of the Parties shall cover their own costs associated with ending the Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination in accordance with this provision.