Terms and Conditions

1 Scope

1.1 These terms and conditions (“Terms”) comprise all offers, orders, sales, deliveries, agreements and/or other services from Napp A/S, a limited liability company registered under the laws of the Kingdom of Denmark, Danish company reg. no. (CVR) 32 26 04 70, (”Seller”) to or with the customer (“Customer”).

1.2 Customer’s general terms do not apply regardless of the wording of the Customer’s general terms.

1.3 The Seller reserves the right to in its own discretion amend the Terms with binding effect upon the Customer with 3 months’ written notice. Updated Terms are at all times available on the Sellers webpage (www.napp.dk).

2 Order procedure and Subscription Agreement

2.1 Seller will send an email to the Customer with a link to the subscription agreement to be entered into between the Seller and the Purchaser regarding the Services (defined below) to be provided by the Seller (”Subscription Agreement”).

2.2 The Customer accepts the Subscription Agreement online or by signatures in writing. Such acceptance by the Customer shall be binding and irrevocable for the Customer. Thus, the Customer is under the obligation to pay the invoice sent by the Seller, cf. clause 9 of these Terms. The Seller will initiate the Services in accordance with these Terms upon the Customer’s payment of said invoice. The Seller is under no obligation to, but may in its own discretion choose to, initiate the Services prior to the Customer’s payment of said invoice. Such early initiation of the Services has no influence on the Customer’s obligation to settle the invoice.

2.3 These Terms and the Seller’s privacy policy shall be deemed an integrated part of the Subscription Agreement and is thus accepted by the Customer to the widest extent possible.

3 Term and termination

3.1 The Subscription Agreement is entered into for the term set forth in the Subscription Agreement (“Initial Term”).

3.2 Unless otherwise specified in the Subscription Agreement all subscriptions, including all obligations of the Customer, will automatically renew in continuous periods equivalent to the Initial Term. The Seller is then entitled to payment as set forth in clause 9.

3.3 Each party is entitled to terminate the Subscription Agreement by giving notice as set forth in the Subscription Agreement.

3.4 Payments from the Customer concerning the period after the effective termination date will not be refunded to the Customer and the Customer has no rights in this regard, unless the Subscription Agreement is terminated due to material breach by the Seller and such breach is documented by agreement or court order.

3.5 Notwithstanding the aforesaid clause, either party may terminate the cooperation and the Subscription Agreement immediately in case of material breach of contract.

3.6 The Seller may terminate the cooperation including all Services immediately if the Customer is being placed into liquidation or any insolvency procedure. The Customer has no rights and can make no claim in this regard.

3.7 Upon termination with notice of either the Subscription Agreement or affected specific Services, Customer may immediately upon expiration of the notice period, i.e. either immediately or with the notice set forth in the Subscription Agreement depending on the termination, discontinue all access and use of all Services under the Agreement or the specific Services. Seller has no obligation to maintain any Customer content following termination, subject to compliance with applicable law. The Seller shall have the right to invoice Customer and Customer agrees to pay for any use of the Services past the date of expiration or termination for the Services provided prior to the termination and/or notice period.

4 Services

4.1 The Seller’s services delivered to the Customer are exhaustively described in the Subscription Agreement (“Services”).

4.2 The Seller shall be entitled to make such modifications to the Services as it deems fit. It is up to the Seller whether such modifications shall influence the fee payable by the Customer.

5 Use of Services and obligations

5.1 The Seller is under the obligation to provide the Services and warrants that the Services in materiality matches the service descriptions provided to the Customer.

5.2 The Customer warrants that it has researched and understood in full the Services, including the purchased products to be delivered as part of the Services, and that the Customer is able to make full use of the Services. No claim can be made against the Seller in the event that the Customer is – partly or in whole – (i) unable to use the Services or (ii) if the Customer is unhappy with the Services without any fault of the Seller.

5.3 The Customer warrants that the Customer’s use of the Service and the Customer’s own systems are in compliance with (i) the Customer’s internal guide lines (ii) local legislation, including local privacy laws and (iii) customary and reasonable security procedures for the protection of systems and data (iv) official guidelines and rules provided by Google and Apple.

5.4 The Customer warrants that it complies with all applicable legislation including, but not limited to all applicable data protection legislation (GDPR).

5.5 The Services is for the benefit of the Customer only (meaning the Customer entity) and may not in any way be distributed to any third party without the written consent of the Seller unless specifically described in the Subscription Agreement. This limitation includes any affiliate, group company or any other related entity to the Customer. In the event such distribution in made, the Seller reserves the right to increase the fees accordingly.

5.6 To the widest extent possible the Customer agrees, on behalf of itself and any person using the Services through the Customer, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or any technology attached to the Services; (ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Sellers technology networks, security systems, accounts, or Services of the Seller or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means; (iii) market, offer to sell, and/or resell the Services in any way, alone (stand alone) or as part; (iv) in any way use the Services in a way that may directly or indirectly violate applicable law, including intellectual property rights or other rights of third parties, including, without limitation, trademark, copyright, data privacy or right of publicity; (v) if the Customer is a Seller competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law; (vi) use or access the Services or permit a user to use or access the Services in a manner that violates the terms of this Agreement. In the event of any breach hereof, Customer agrees to (i) indemnify and hold Seller harmless against any third party claim, (ii) pay Seller a penalty fee of EUR 100,000 (which shall not limit or count as part of any claim the Seller wishes to make against the Customer in this regard).

5.7 If the Customer becomes aware of, or receives notice from the Seller that, any violation has occured or may occur the Customer shall take immediate action to stop this and inform in writing the Seller.

5.8 The Customer is liable for any employee, consultant or other person having access to the Services directly or indirectly through the Customer and shall ensure that any such person is made aware of these Terms and the obligations herein. In the event that any such person fails to comply with these Terms the Seller can make the claims against the Customer.

6 Seller’s marketing

6.1 The Customer agrees that the Seller may in the Seller’s own discretion use the Customer’s name and logo for marketing purposes, including but not limited to the Seller’s home page, without making any payment to the Customer.

6.2 The Customer agrees that the Seller may send newsletters, offers and other information by the Seller to the email address informed by the Customer.

7 Subcontractors

7.1 The Seller shall be entitled to use subcontractors at its own discretion.

8 Prices and fees

8.1 Prices and fees are set forth in in the Subscription Agreement.

8.2 The Seller will charge separate for any product or service not included in the Services.

8.3 All prices and fees are exclusive of VAT and any other duties or fees. VAT will be added where applicable.

8.4 If the delivery of the service is postponed due to matters pertaining to the Customer’s default, Customer is still - unless otherwise agreed - obliged to make all payments to Sellers as if delivery had taken place at the agreed time.

9 Invoicing and payments

9.1 In reference to clause 2.2 of these Terms Payments along with any extra fees is invoiced for an agreed period in advance. The actual period and advance payment is set forth in will be shown in the Subscription Agreement. The Seller the confirmation page. Seller reserves the right to charge an additional fee for invoicing.

9.2 If Customer fails to make any payment by the due date, Seller is entitled to suspend the Services and all contractual obligations until payment is made in full including any accrued interest impose a charge to restore archived data from delinquent accounts.

9.3 Customer is not entitled to set off against any counter claims on Seller which have not been acknowledged by Seller in writing and is not entitled to withhold any part of the payment due to counter claims of any sort. The Seller may set off against any amount payable by the Customer.

9.4 Interest is accrued on the amount outstanding to Seller as from the due date, cf. the Danish Interest Act. A fee of DKK 100 will be charged per reminder.

10 Defects

10.1 Customer must carry out a thorough investigation of the Services and the usage hereof immediately upon receipt in order to ascertain that there are no defects. Customer cannot later claim damages for any defects which should have been detected in this investigation.

10.2 In the event of a defect regarding the Services the Customer shall give written notice to the Seller hereof immediately after the Customer has discovered the defect. Such notice shall contain a description of the defect. The Seller is entitled to remedy such defect without undue delay after the Customer’s written notice hereof has been received by the Seller.

10.3 If Customer wishes to make a claim due to a defect, Customer must inform Seller hereof in writing immediately after the time where the defect should have been or is discovered and state the nature of the defect. If Customer has discovered or should have discovered the defect and fails to submit a claim as stated above, Customer cannot submit a claim at a later date. In any case, all remedies for breach of contract lapse 1 year after the Services have been taken into use.

10.4 If Seller has not remedied a defect without undue delay, Customer may demand in writing to Seller that remedy takes place within a reasonable deadline which cannot be less than 14 calendar days. If the defect is not remedied within this deadline, Customer may choose to claim a prolongation of the Services in the number of calendar days it takes the Seller to remedy the defect in excess of 14 calendar days. Customer has no other remedies for breach of contract in case of defects in the delivery and especially has no remedies due to direct or indirect losses, secondary damages etc.

11 Limitation of liability

11.1 Customer must carry out a thorough investigation of the Services and the usage hereof immediately upon receipt in order to ascertain that there are no defects. Customer cannot later claim damages for any defects which should have been detected in this investigation.

11.2 All products are provided “as is” and the Seller and its suppliers (which may be used at the Seller’s sole discretion) disclaim any and all warranties and representations, including regarding non-infringement, title, fitness for a particular purpose, functionality, whether express or statutory.

11.3 Regardless of what is set forth in these Terms and/or the Subscription Agreement, the Seller can never towards the Customer or any third party be liable for any amount in excess of the amount paid by the relevant Customer to the Seller in fees for the Services in the foregoing 12 months prior to any claim made by such Customer, reduced by 15 %. This hard cap is expressly accepted by the Customer.

11.4 To the widest extent possible the parties agree that the Seller shall not be liable towards any party, including the Customer, for any indirect, special, consequential or incidental loss or other damages, whether directly or indirectly arising from (i) loss of data, (ii) loss of income, (iii) loss of opportunity, (iv) lost profits, (v) costs of recovery, replacement or restoration of any lost or altered customer content (vi) unavailability or non-performance of any or all of the Services, (vii) cost of procurement of substitute goods or services, (viii) or any other damage caused by directly or indirectly breach (or a theory thereof), including but not limited to breach of contract, tort (including negligence), or violation of statute or law.

12 Product liability

12.1 To the widest extent possible the parties agree that the Seller is not responsible for any product liability, including personal injury or property damage, unless it appears otherwise from mandatory legislation. Thus, the Customer accepts that any such product liability towards the Customer and/or any third party is of no concern to the Seller as such liability and risk is carried by the Customer.

12.2 Otherwise reference is made to clause 11.

13 Intellectual property rights

13.1 The parties agree that the Seller owns all legal rights, titles and interests to and in connection with the Services, including but not limited to the platform, website, application and information emitted from the Service. Individually produced software and modifications to the Service also belongs to belongs to the Seller.

13.2 Nothing in this agreement transfer ownership of any intellectual property rights in the products to Customer. Customer may not represent that it has any interest in relation to the intellectual property rights in the product and may not contest, oppose or make any application to challenge the validity of any of the intellectual property rights or take any other action which is adverse to the intellectual property rights.

13.3 Except for the limited subscription rights expressly stated in the Subscription Agreement, the Customer has no right, title or interest in or to the Seller’s Services, any Seller products or any components provided by the Seller in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that the Sellers or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Seller and the Services and any components, including, without limitation, all modifications, improvements, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto. This includes any information that the Seller and its service providers collect and analyze in connection with the Services, such as usage patterns, feedback, and other information to improve and enhance the Services. Customer hereby grants the Seller a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of, and otherwise exploit any feedback without restriction in any manner now known or in the future conceived, and to make, use, sell, offer to sell, import and export any product or service that incorporates the feedback. No other rights with respect to the Services, any related Seller product, or any related intellectual property rights are implied.

14 Data

14.1 The Seller treats the data received from the Customer with full confidentiality and Seller must reasonably ensure that data is not disclosed to any third parties. Seller stores and handles the Customer's data solely for the delivery of the Service.

14.2 Among the types of Personal Data that the Service collects, by itself, by entry done by the Customer and by the Customer’s users there are: usage data, names and email address.

14.3 The Personal Data may be freely provided by the Customer, or, in case of Usage Data, collected automatically when using this Service.

14.4 Any use of Cookies - or of other tracking tools - serves the purpose of providing the service required by the Customer, in addition to any other purposes described in the present document and in the Cookie Policy, if available.

14.5 The Customer is responsible for the data provided to Seller and is also responsible for any third-party Personal Data obtained, published or shared through this Service and confirms to have the third party's consent to provide the Data to the Service.

14.6 Seller as the Data Processor processes the Data of the Customer and its users in a proper manner and shall take appropriate security measures to prevent unauthorized access, disclosure, modification, or unauthorized destruction of the Data.

14.7 The Data processing is carried out using computers and/or IT enabled tools, following organizational procedures and modes strictly related to the purposes indicated. In addition to the Data Processor, in some cases, the Data may be accessible to certain types of persons in charge, involved with the operation of the Service (administration, sales, marketing, legal, system administration).

14.8 The Data is processed at the Data Processors operating offices and in the online back-up solution used by Seller.

14.9 The Data is kept for the time necessary to provide the service requested by the Customer, or stated by the purposes outlined in this document, and the Customer can always request that the Data Processor suspend or remove the data.

14.10 The Data concerning the Customer and its users is collected to allow Seller to provide its services to the Customer.

15 Confidentiality

15.1 The parties shall keep strictly confidential towards any third party the content of the Subscription Agreement.

15.2 The Customer shall keep strictly confidential towards any third party any information that may be deemed (i) a trade secret, (ii) intellectual property, including but not limited as mentioned in 13, and (iii) any piece of information that may in any way be able to harm the Seller if passed on to a third party.

16 Indemnity

16.1 Customer indemnifies Seller against the full amount of all liabilities, claims (including third party claims), expenses, losses, damages and costs (to solicitor and whether incurred by or awarded against Seller) that Seller may sustain or incur as a result whether directly or indirectly of any:

a) Breach of these Terms and the Subscription Agreement, by Customer;

b) Claim by any person arising out of Customer’s advertising, promotion, marketing or sale of a Seller product;

c) Negligent, unlawful, reckless or wilful act or omission by Customer or any of its officers, employees, contractors or agents; or

d) Action or claim by any other third party arising from paragraphs a) and b).

17 Force Majeure

17.1 Seller shall not be deemed liable for failure to fulfil his obligations if this is due to force majeure, including wars, insurrections, interference from public authorities, strikes, lock-outs, export/import prohibitions, adverse weather conditions, fires, lack of raw goods, labour and energy and breakdowns in machinery. This applies irrespective of whether this hindrance affects Seller or a subcontractor.

18 Assignment and change of control

18.1 Seller is entitled to assign all rights and obligations under this agreement to a third party.

18.2 The Customer may assign no rights under this Subscription Agreement.

18.3 In the event of any change of control in the Customer, including but not limited to the disposal of a majority stake of shares (regardless whether in one or more transactions), votes or any other transfer or change which in reality transfers the control of a Customer to another party, shall entitle the Seller to terminate with immediate effect the Subscription Agreement in accordance with the principles set forth in clause 3.7 of these Terms. Such change of control requires the written consent of the Seller. The Customer is under the obligation to inform the Seller of any such change of control. Any failure to comply with this clause 17.1 shall entitle the Seller to terminate the Subscription Agreement immediately.

19 Choice of law and legal venue

19.1 Any disputes arising out of this agreement, including regarding its existence, and in connection with this agreement must be settled under Danish law with the Municipal Court of Copenhagen as the legal venue.

Last updated: 20. Nov 2019