Terms and Conditions

1. SCOPE AND ORDER OF PRECEDENCE

These general terms and conditions (“Terms and Conditions”) comprise all Services from:

bodydox ApS
Skydebanegade 40, 4. th.
DK-1709 Copenhagen
(the ”Supplier”, “we”, “our”, “us”, etc.)
to the Customers.

  1. The Customers’ general terms of business do not apply to the Supplier’s delivery of the Services.
  2. If there are any discrepancies between these Terms and Conditions and the terms agreed in the Data Processing Agreement, the terms of the Data Processing Agreement shall prevail to the extent such discrepancy exists.

2. DEFINITIONS

    1. Terms and expressions with capital first letters used in these Terms and Conditions shall have the meanings set out in this clause 2.
    2. Confidential Information” means Personal Data and all information of a technical, business, infrastructural or similar nature, irrespective of whether this information has been documented, except for information which is or will be made available in another way than through breach of this Data Processing Agreement.
    3. Customer”, “you”, “yours” etc.  shall mean a free trial user or subscriber of the Services provided by the Supplier.
    4. Data Processing Agreement” shall mean the Data Processing Agreement entered into between the Customer and the Supplier in connection to the Customer’s free trial of or subscription to the Services.
    5. Parties” shall mean the Customer and the Supplier jointly and each a “Party”.
    6. Personal Data” shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.  
    7. Services” shall mean all services rendered by the Supplier to the Customer, including, but not limited to, the Supplier’s provision of license to use the services and other IT tools or software programs developed by the Supplier, hosting of data, support and helpdesk services etc.
    8. Service Period” shall mean a subscription period of 1 month. The first “Service Period” commences on the date when the Customer subscribe to the Supplier’s Services other than a free trial period.  
    9. Subscription Date” shall mean the date on which the Customer signs up to a subscription to the Services or to a free trial period.

3. THE SUPPLIER’S PROVISION OF SERVICES

    1. The Supplier provides to the Customer – on the terms in these Terms and Conditions – a limited, non-transferable and non-exclusive license to use the Services. 
    2. The Services are made available to the Customer in the most recently prepared and released version applicable at any time on our website. The Services will not be configured to the Customer’s individual needs by us, unless such individual configuration has been specifically agreed between the Parties. 
    3. We make the necessary hardware and software available for the continuous operation of the Services within a geographical area determined by the physical boundaries of the operations center used by the us. Hardware is placed in an operation center with the Supplier and/or with a third-party supplier appointed by the Supplier. 
    4. To the extent specified in clause 4 below, we shall oversee and handle the operation remedial actions, back-up, support, maintenance, upgrading and updating of the Services.
    5. The Customer and its licensed users must use the Services in accordance with these Terms and Conditions and any other written instructions provided by us, including, e.g., user’s manual, FAQ and instruction videos.

4. OPERATION, MAINTENANCE AND REMEDIAL ACTIONS

    1. We shall render the services specified in these Terms and Conditions to the Customer. The Services must always be provided in due time, and in a quality, to an extent and in a way, that is in accordance with these Terms and Conditions and normal good practice recognized within the our line of business.
    2. The Supplier undertakes, potentially through a third-party operator, the daily operations and supervision of the Services and arranges for the ongoing backup of data etc. The Supplier, in its sole discretion, may have the operator replaced at any time and for no specified reason.
    3. The Supplier is not liable for any interruptions in operation that may occur in the transmission of data between the Supplier’s operations centre and the Customer, its internet domain(s) or licensed users, unless such interruptions are caused by errors in the Services. 
    4. We offers support to  the Customer as described in the FAQ on our website, available here: https://www.bodydox.com/faq/. We endeavor to answer queries submitted via the contact email address within 24 hours from the our registration of the query in question. 
    5. The Supplier shall maintain and – as decided by the Supplier in each case – on an ongoing basis update and upgrade the Services for the purpose of maintaining a general average uptime of not less than 99.2% (measured during a three (3) month period). When calculating the uptime, service windows time notified in writing by the Supplier, not less than six (6) days in advance, are excluded. 
    6. Subject to clause 4.7 below, the Supplier must remedy identified errors with respect to the Services. Critical errors such as errors that involve unavailability of the Services or very limited availability shall be remedied without undue delay. Non-critical errors shall be remedied within a reasonable period after the Customer’s notification to the Supplier of the non-critical error and/or the Supplier’s registration thereof.  
    7. If errors in third-party software are observed, the Supplier is only obligated to inform the manufacturer of the error, encouraging the manufacturer to remedy the defective software within a reasonable period. In the event of critical errors or errors that significantly reduce the use of the Services for the Customer, the Supplier is obligated to use reasonable best efforts to create a temporary “work around”. 
    8. If the Customer reports defects in the Services to the Supplier and it is later documented that the defect is not caused by errors in the Services but is caused by the Customer’s misuse, defective communication lines or any similar errors beyond the Supplier’s control or responsibility, the costs for the remedial action shall be paid by the Customer, and the Supplier will then be entitled to a fee, calculated based on the specific time spent at the Supplier’s hourly rates applicable at the time of the Supplier’s remedial actions. If the Customer causes any defect to the Services, the Supplier is entitled to a fee for remedying such defect in accordance with clause 4.8 above.

5. THE CUSTOMER’S USE OF THE SERVICES

    1. Unless otherwise is agreed between the Parties, the Customer’s license to use the Services covers one (1) user only, 
    2. The Customer shall handle the overall administration of the Customer’s license to use the Services, including, if relevant, allocation of licenses between the Customer’s designated users. 
    3. The Customer may not:
        • Break the technical limitations of the Services;
        • Improperly delete, de-compile, reverse engineer, reverse compile, modify, translate, or make any similar changes to the Services;
        • Sell, rent, lease, distribute, sublicense, transfer or lend the Services to third parties;
        • Make the Services available for use by third parties, including as a hosting or service provider; 
        • Make the Services available for use by third parties, including hosting or service providers to the Customer, however excluding your client’s Personal Data . 
        • Remove, modify or add information of the Supplier’s copyright, trademarks and/or property rights (including information on physical media); or
        • In any way for commercial purposes or in a disloyal way link (actively or passively) to the Services.
    4. The Customer assumes the full liability and risk of planning the user administration expediently and in such a way that user names and passwords cannot be misused to obtain unauthorized access to the Services.
    5. If an authorized user of the Customer uses the Services in violation of the applicable terms of use, these Terms and Conditions or the Data Processing Agreement, we are entitled to exclude such user from the Services, if the user does not immediately comply with our instructions upon notification thereof.

6. FEES, PAYMENT TERMS AND PRICE ADJUSTMENTS

    1. Fees
        • As fee for the right to access and use the Services and as fee for the Supplier’s overseeing and handling of the continued operations, backup and support, maintenance and development of the Services, the Customer shall pay a monthly licence fee for each Service Period. Fee amounts applicable from time to time are available on our  website here: https://www.bodydox.com/faq/ 
        • The monthly license fee is charged inclusive of Danish VAT (if applicable). 
        • The monthly licence fee for Subscription of the Services is invoiced in advance for a period of 1 month. Invoices will be uploaded in our IT tool for each Service Period wherefrom the Customer can access and download the invoice.
        • The monthly license fee may be subject to annual indexation according to the “Producer price index for services” as published by Statistics Denmark. 
        • In addition to annual indexation of the monthly license fee, cf. clause 6.1.4 above, the Supplier may claim a price adjustment to the monthly license fee subject to at least three (3) months’ prior written notice hereof to the Customer.   
    2. Free trial period
        • The Supplier may offer Customers a free trial of the Services. The trial period is determined by the Supplier from time to time.
        • The Supplier will not charge a license fee for a Customer’s use of the Services during a free trial period. It is voluntary for the Customer to sign up for a subscription to the Services upon expiry of a free trial period. Signing up to a free trial period is not conditioned by the Customer’s provision of consent to use Personal Data, signing up to newsletters from the Supplier etc.
        • Notwithstanding clause 6.2.2 above, the Supplier will, also during a free trial period, be entitled to the separate fees and costs that are not included in the monthly license fee for the Services as specified in the Data Processing Agreement.
    3. Payment Terms
        • The Supplier’s invoices are due for payment upon receipt, the last due payment date being fourteen (14) days after the invoice date. If an invoice has not been settled for a period of more than fourteen (14) days after the invoice date, the Supplier is entitled to terminate the Customer’s license to use the Services until the invoice and any other amounts due has been paid by the Customer. 

7. PERSONAL DATA

    1. With respect to all Personal Data entered, transferred or stored in the databases of the Supplier or third-party suppliers related to the Supplier’s provision of the Services, the Customer is the data controller, and the Supplier is the data processor (as defined in the General Data Protection Regulation; EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, commonly known as “GDPR”).
    2. Our processing of Personal Data on behalf of the Customer in relation to the Services, is regulated by the Data Processing Agreement, which the Parties enter into upon the Customer’s subscription to the Services or a free trial period.

8. WARRANTIES

    1. The Supplier warrants to the Customer that the Services in essential will work in accordance with the stated specifications and the specified functionality. However, the Supplier does not warrant that the Services will work without any interruptions or discontinuations or that the Services will always work perfectly. The Supplier does not warrant the quality or any specific result or outcome from the Customers use of the Services or any related services.
    2. The Supplier warrants to the Customer that the Supplier holds all permits, licenses, approvals etc., required for the Supplier to sustain operation and maintenance of the Services in accordance with this Agreement.
    3. The Customer warrants to the Supplier that the Customer does not use the Services for collection, registration, storage, processing or manipulation of data in violation of any applicable legislation, including that the Customer has obtained all required permits from public authorities etc. with respect to the implied collection, storage and use of Personal Data etc.
    4. The Customer warrants that the Customer and its users comply with the safety regulations applicable from time to time, including regulations with respect to storage and use of passwords and user IDs. The Customer warrants that the Customer will not at any time create more user accounts or otherwise permit more users to access the Services than permitted.  

9. RIGHTS OF OWNERSHIP AND USE

    1. Within the scope of this Agreement, the Customer acquires a limited, non-exclusive, non-transferable right to access and use the Services and any related services provided by the Supplier to the Customer. 
    2. With due respect of any third-party rights, the Supplier has and will maintain the full, undivided and unrestricted rights of ownership and/or use of all aspects of the Services. This also applies to the user manuals, reporting formats, training material and other tangible and intangible assets and knowhow which the Supplier has developed, or which the Supplier subsequently may (perhaps in cooperation with the Customer) develop for the Customer’s use of the Services.
    3. You, as the Customer, have and will maintain the full and unrestricted right to your client’s data and Personal Data uploaded and stored by you in our IT tool in connection to the your use of the Services.  We are entitled to use anonymized data for historical, statistical, scientific or similar purposes. 
    4. Upon termination of the Services, each Party is obligated, upon request from the other Party, to hand over any material which is the property of the other Party and in the possession of the first mentioned Party. Such request must be made in writing no later than six (6) months after the termination or expiry of the Services. 

10. INTELLECTUAL PROPERTY RIGHTS

    1. The Customer is granted a limited, non-transferable and non-exclusive license to use the Services, cf. clause 3.1. All rights of ownership and title to the Services – including intellectual property rights such as copyrights, design rights, patents, inventions, ideas, know-how and trademarks – remain the property of the Supplier and/or its licensors. This includes all rights developed by or for the Supplier in the course of providing the Services, technical support or other services to the Customer.
    2. Nothing in these Terms and Conditions or in the cooperation between the Parties transfer ownership of any intellectual property rights in the Services to  the Customer. The Customer may not represent that it has any ownership or other intellectual property rights to the Services and may not contest, oppose or make any application to challenge the validity of any of the Supplier’s intellectual property rights to the Services or take any other action which is adverse to the Supplier’s intellectual property rights.
    3. The Supplier may ask for the Customer’s consent to use the Customer’s name and logo as reference on the website of the Supplier. 

11. CONFIDENTIALITY

    1. The Parties accept, both for the duration of the Customer’s free trial of or Subscription to the Services and subsequently, not to disclose any Confidential Information to a Third Party. This non-disclosure obligation shall not apply to information which (a) a Party is obliged to disclose under applicable law, regulations or stock exchange rules (b) information provided to the client of the Customer if such information originates from or regards such client of the Customer or (c) information which a Party document has been created by the Party itself. 
    2. The Parties shall ensure that employees and consultants who receive Confidential Information are obliged to accept a similar obligation regarding Confidential Information from the other Party and the cooperation in general in accordance with these Terms and Conditions.  

12. TERMINATION

    1. The Services can be terminated by the Customer to the end of a month by providing us with written notice thereof (“written notice” includes online unsubscription via our IT tool). The Customer must provide the us with a notice of termination no later than the day before a new Service Period commences. The Customer will not be charged with a monthly license fee for the following month.
    2. With effect from the date of termination or expiry of the Services, all licenses shall terminate and the Customer’s right to use the Services will lapse.

13. COMPLAINTS, BREACH AND COMPENSATION

    1. If a Party breaches its obligations under these Terms and Conditions, the other Party is entitled to order the Party in breach to remedy the breach within a period of eight (8) days as from the time of receipt of the claim. If the Party in breach does not comply with the claim and if a material breach exists, the other Party is entitled to terminate the Services without further notice. A material breach is, amongst other things, the Customer’s failure to make payment within fourteen (14) days after the due date. If the Customer’s payments are suspended, if the Customer enters negotiations for voluntary arrangements with creditors or compulsory arrangement with creditors or apply for reconstruction or is administered in bankruptcy, these Terms and Conditions may, notwithstanding this clause 13.1, be terminated immediately and without prior notice, unless otherwise dictated by mandatory law.
    2. In the event of breach, either Party may claim compensation under the general rules of compensation in Danish law.
    3. LIABILITY FOR VIOLATION OF THIRD PARTY RIGHTS
        • The Supplier is responsible to the Customer for the Services not violating any third party intellectual property rights. If legal proceedings are initiated against the Supplier in which it is claimed that such violation of third party rights exists, the Supplier shall inform the Customer thereof immediately. If a decision is made with respect to any third-party claim, the Supplier may choose to either (i) acquire the rights necessary for the continued lawful use of the Services, or (ii) remedy the violation by changing or replacing the Services or parts thereof with a new or modified solution, which essentially functions as the Services, or (iii) terminate the Services against a proportionate refund of any prepaid monthly licence fee. In such case, the Customer cannot make additional claims because of the termination or the violation. 
    4. THE REMEDIES MADE AVAILABLE TO THE CUSTOMER IN THIS CLAUSE 13.4 ARE THE SOLE AND EXCLUSIVE REMEDIES, WHICH ARE AVAILABLE TO THE CUSTOMER, IF THE SERVICES IS VIOLATING ANY THIRD PARTY INTELLEC-TUAL PROPERTY RIGHTS.
    5. LIMITATIONS TO THE LIABILITY OF THE SUPPLIER
        • Notwithstanding the provisions in the clauses 13.2 and 13.3.1,  the Supplier’s obligation to compensate through damages and/or proportionate reduction of the monthly license fee or other fees is subject to the following limitations: 
        • THE SUPPLIER IS AT NO TIME LIABLE FOR AND MUST AT NO TIME BEAR ANY PART OF THE RISK FOR THE QUALITY OF ANY ASSESSMENTS, ANALYSIS INTERPRETATIONS, WORK RESULTS OR OUTPUT GENERATED BY THE CUSTOMER USING THE SUPPLIER’S SERVICES.
        • THE SUPPLIER IS AT NO TIME OBLIGATED TO COMPENSATE THE CUSTOMER FOR ANY INDIRECT OR CONSEQUENTIAL LOSS, INCLUDING BUT NOT LIMITED TO, LOSS OF EXPECTED EARNINGS BY THE CUSTOMER, EXPENSES FOR REMEDIAL ACTION OF DAMAGE TO OR ERRORS IN DATA UPLOADED BY THE CUSTOMER, INCLUDING INTERNAL TIME SPENT BY THE CUSTOMER OR THIRD PARTIES HIRED BY THE CUSTOMER ON REMEDIAL ACTIONS, OR ANY LOSS BECAUSE OF COVERING PURCHASES MADE.
        • THE MAXIMUM COMPENSATION WHICH THE SUPPLIER MAY BE ORDERED TO PAY TO THE CUSTOMER UNDER THE SERVICE LICENCE AGREEMENT CANNOT EXCEED THE HIGHEST AMOUNT OF EITHER (I) THE MONTLY LCENCE FEE PAID DURING THE LATEST TWELVE (12) MONTHS PRIOR TO THE MONTH IN WHICH THE DAMAGE HAS OCCURRED MULTIPLIED WITH TEN (10) OR (II) DKK 50,000.
    6. Any disregard of the agreed limitations of liability is subject to the general rules of Danish law.

14. FORCE MAJEURE

    1. Neither Party is liable for any delay or defects because of circumstances beyond the reasonable control of the concerned Party (force majeure), including in the event of mobilisation, war, natural disasters, strikes/lockouts, restrictions with respect to use of power and/or communication lines, including power blackout and breakdown of communication lines, which the Party could not, within reason, have foreseen, avoided or overcome. In the event of force majeure, the Parties’ obligations are suspended as long the event is reasonably deemed to continue. Force majeure may only be claimed, if the concerned Party has notified the other Party thereof no later than ten (10) days after the event of force majeure having occurred.

15. ASSIGNMENT AND SUBCONTRACTORS

    1. The Customer is not entitled to assign any rights and obligations under these Terms and Conditions to any third party without the prior written consent of the Supplier.
    2. The Supplier is entitled to assign rights and obligations under these Terms and Conditions to any company or legal entity, which is affiliated with the Supplier. Further, the Supplier is entitled to assign rights and obligations under these Terms and Conditions as part of a transfer of the Supplier’s business activities, in part or in full, irrespective that such transfer is made to a company or other legal entity not affiliated with the Supplier. 
    3. The Supplier is entitled to use subcontractors for the provision of the Services to the Customer. 
    4. The Supplier remains liable for services provided by the Supplier’s subcontractors as if the services had been provided by the Supplier itself. 
    5. The Supplier’s use of sub-processors in relation to the Supplier’s processing of Personal Data for the Customer is regulated by the Data Processing Agreement. 

16. OTHER PROVISIONS

    1. Venue and choice of law
        • These Terms and Conditions are governed by Danish law, excluding its conflict of law provisions.
        • To the extent possible, the Parties must attempt to amicably resolve any dispute with respect to the application or interpretation of these Terms and Conditions through negotiations. Disputes, which cannot be amicably resolved by the Parties, must be attempted to be settled through mediation by Mediationsinstituttet (the Danish Mediation Institute), Vesterbrogade 32, DK-1620 Copenhagen V. When a Party believes that a dispute has arisen, such Party is entitled to apply for initiation of mediation to the Danish Mediation Institute. The mediation must be completed in accordance with the rules on the handling of disputes at the Danish Mediation Institute applicable from time to time. If the mediation does not resolve the dispute within a period of forty-five (45) days, the dispute may, by either Party, be brought before the ordinary courts of Denmark with the Copenhagen City Court as agreed venue with access to referral and appeal in accordance with the Danish Administration of Justice Act.
        • However, notwithstanding the provision in clause 16.1.2 above, the Supplier is entitled to immediately bring a legal action against the Customer before the Copenhagen City Court, if the value of the action does not exceed DKK 50,000 at the time of the legal action.
    2. Unity and entirety of these Terms and Conditions
    3. These Terms and Conditions and the Data Processing Agreement form the complete agreement between the Parties and replace all previous oral and written agreements between the Parties. 

17. THE CUSTOMER’S ACCEPT OF THE TERMS AND CONDITIONS

    1. The Customer must accept these Terms and Conditions upon the Customer’s subscription to the Services or a free trial period. 
    2. It is voluntary for the Customer to accept the Terms and Conditions. However, if the Customer does not accept the Terms and Conditions, the Supplier cannot make the Services available for the Customer.

 

Version: July 2019