Handelsbetingelser

TERMS AND CONDITIONS FOR USE OF THE PRICESHAPE PLATFORM

1. Introduction

1.1.

The PriceShape platform on PriceShape.dk (the “Platform”) is made available by PriceShape A/S, company reg. no.: 40 67 18 70, Moellehatten 21, 2nd floor, 8240 Risskov, Denmark, (“PriceShape”). 

1.2.

These terms and conditions, including all terms incorporated herein by reference, (the “Terms”) apply to the Platform and any associated services provided by PriceShape to its customer (“Customer”). The Terms apply to Customer’s use of the Platform irrespective of whether Customer has signed a formal contract, cf. clause 1.3, and by using the Platform Customer accepts the Terms. 

1.3.

The contract (the “Contract”) together with these Terms constitute the agreement between PriceShape and Customer (the “Agreement”). In case of any discrepancy between the Contract and these Terms, the terms of the Contract shall take precedence. 

2. Definitions

2.1.

“Confidential Information” with respect to a disclosing party, means all information, data and material disclosed by such disclosing party to the receiving party (in whatever form) that is marked or described as, or provided under circumstances reasonably indicating it is, confidential or proprietary. PriceShape’s Confidential Information includes the Platform and all non-public information and materials (technical, business and otherwise) related to the Platform (and the use of it) or provided by PriceShape to Customer in relation to the Agreement. 

2.2.

“Customer Materials” means any information or materials that Customer or any End User inputs, transmits or uploads to, or otherwise stores or processes on or through, the Platform.

2.3.

“End User” means any Customer personnel permitted by Customer to access and use the Platform.

2.4.

“Intellectual Property Rights” means all copyrights, patents, rights with respect to trademarks, rights in domain names, rights with respect to databases and other compilations and collections of data or information, and all other intellectual property rights, in each case whether registered or unregistered, which subsist or will subsist now or in the future in any part of the world.

2.5.

“PriceShape Subcontractors” means subcontractors and service providers used by PriceShape.

2.6.

“Services” means the ancillary services, if any, to be delivered by PriceShape to Customer as described in the Contract.

2.7.

“User Account” means an End User account associated with a unique username and password, through which the End User may access and use the Platform as permitted under the Agreement.

3. Platform and Services

3.1

PriceShape (or its licensors) owns all right, title, and interest, including all Intellectual Property Rights, in and to the Platform and any other materials provided by PriceShape under the Agreement. 

3.2.

PriceShape grants to Customer a limited, non-exclusive, non-transferable right for Customer and its End Users to access and use the Platform during the term of the Agreement, solely in accordance with the Agreement. Customer and its End Users may only access and use the Platform through the URL designated by PriceShape and only with valid User Accounts granted to Customer by PriceShape.

3.3.

During the term of the Agreement, PriceShape will maintain and make available the Platform to Customer and its End Users pursuant to the Agreement. In case of any errors or performance related issues in respect of the Platform, PriceShape will use commercially reasonable efforts to solve such errors or issues without undue delay. To the extent PriceShape provides details of availability targets and other service levels that might apply to the Platform from time to time, the targets or service levels are subject to change and not contractually binding. Any targets or service levels (i) refer to access to the Platform over the Internet; and (ii) exclude any periods of downtime or suspension described in clause 11

3.4.

 PriceShape will perform the Services described in the Contract for Customer, for the purpose set out in the Contract, with reasonable skill and care. PriceShape expressly disclaims all liability, responsibility and duty of care to anyone other than Customer in connection with the Services. To the extent required to secure the Services, Customer will provide accurate and complete information to PriceShape in a timely manner. PriceShape is entitled to rely on, and will not verify any information provided by, or on behalf of, Customer relating to the Services. 

3.5.

The Platform may include certain free and open-source software components. Customer’s use of open-source software is governed exclusively by the terms applicable to the open-source software and not the terms of the Agreement. Customer acknowledges that any access to open-source software is provided on an “as is” basis.

3.6.

PriceShape may host the Platform anywhere PriceShape or PriceShape Subcontractors maintain facilities, unless otherwise agreed by the parties in the Contract. 

3.7.

If Customer chooses to provide comments or feedback to PriceShape in relation to the Platform, Customer hereby grants to PriceShape a worldwide, non-exclusive, royalty-free, transferable, sublicensable, perpetual and irrevocable license to use and otherwise exploit the feedback for any purpose.

4. Customer responsibilities

4.1

End Users:

  (i) Customer is responsible for its and its End Users’ use of the Platform, including compliance with the Agreement. 

  (ii) Customer will ensure that only End Users access the Platform.  

  (iii) Customer will promptly notify PriceShape in writing if (i) any changes to the End Users’ access rights or permissions are required; and/or (ii) Customer becomes aware of any unauthorised use of the Platform.  

4.2

Customer will not and will ensure that End Users will not: 

(i) infringe PriceShape’s or its licensor’s Intellectual Property Rights; 

(ii) decompile, decipher, disassemble, reverse engineer or otherwise decrypt the Platform except to the extent permitted by mandatory laws; 

(iii) use the Platform to provide services to a third party or allow any third party to either obtain a copy of the Platform or to access or use the Platform, including any outputs from the Platform, in any way not expressly agreed in writing by PriceShape in advance; 

(iv) integrate or inter-operate the Platform with other software, hardware or data used or licensed by Customer without obtaining any necessary permits, consents or licenses required; or

(v) duplicate, modify or create a derivative work from the Platform without PriceShape’s prior written consent. 

4.3

Customer will ensure that it has the necessary rights to provide the Customer Materials to PriceShape and to grant the rights and licenses granted to PriceShape under the Agreement. Customer acknowledges that the Platform is not intended to hold or maintain master or original information and agrees that Customer will be solely responsible for maintaining a backup of all Customer Materials.

 

5. Fees

5.1

Customer shall pay PriceShape fees as described in the Contract. Except as set out in clause 8.2 (iii), all fees paid are non-refundable. VAT is not included in the fees unless stated in the Contract. 

5.2

PriceShape shall be entitled to adjust its fees from time to time with thirty (30) days’ notice. If Customer does not wish to accept the adjusted fees, Customer may, within the thirty (30) days’ period,  give notice to terminate the Agreement with the agreed termination notice, cf. clause 12.2, in which case the current fees, without adjustment, will apply throughout the termination period.

5.3

PriceShape may forward invoices electronically. Invoices are payable no later than eight (8) days after the invoice date. In case of late payment, PriceShape may charge interest on the overdue amount at a rate of 12% per annum, accruing on a daily basis from the due date until the date of actual payment. A reminder fee of DKK 100 will be added to each reminder of late payment.

5.4.

PriceShape may suspend the use of or access to the Platform immediately in case of late payment.

6. Confidentiality

6.1.

Each party agrees to use the other party’s Confidential Information only in relation to the performance of the Agreement, and not to disclose it, except where required by applicable law. PriceShape may give Confidential Information to PriceShape Subcontractors and to others involved in performance of the Agreement, provided they are subject to confidentiality obligations.

6.2.

Except to the extent necessary for a party to continue to exercise its rights and perform its obligations under the Agreement or as required by applicable law, at any time upon the disclosing party’s request, a receiving party will delete or destroy documents and other materials that contain or constitute Confidential Information of the disclosing party, as directed by the disclosing party.

6.3.

Notwithstanding other provisions in this Agreement and provided that PriceShape complies with its confidentiality obligations, Customer agrees that PriceShape may use any information obtained from Customer’s use of the Platform or supplied by Customer or anyone else working with or for Customer for the purposes of improving the Platform and PriceShape’s services.

7. Data Protection

7.1.

Each party shall comply with any obligations it may have under applicable data protection legislation in connection with its performance of its obligations under the Agreement.

8. Intellectual property indemnity

8.1.

PriceShape will defend any claims against Customer in Denmark alleging that the Platform infringes a third party’s Intellectual Property Rights (“IPR Claim”) and indemnify Customer for any judgements awarded against Customer arising from an IPR Claim that will not be appealed or any final settlement approved by PriceShape.

8.2.

When PriceShape becomes aware of any actual or potential IPR Claim, it may at its sole discretion (i) modify or replace any part of the Platform with functionally equivalent features and performance; (ii) obtain rights for Customer to continue using the Platform; or (iii) terminate the Agreement and issue a refund for the fees, if any, paid for the Platform for the remainder of the term of the Agreement. Customer agrees to abide by PriceShape’s decision and, if directed by PriceShape, to stop using the Platform.

8.3.

This indemnity is conditional on Customer (i) having complied with and continuing to comply with the Agreement; (ii) notifying PriceShape promptly of any actual or threatened IPR Claim; (iii) giving PriceShape control of the defence and settlement of the IPR Claim; (iv) complying (at PriceShape’s expense) with all of PriceShape’s reasonable requests in defending or settling the IPR Claim; (v) taking all reasonable steps to mitigate the amount of Customer’s loss; and (vi) without PriceShape’s prior written consent, not making any admission or acting in a way that may be prejudicial to any litigation or negotiation of the IPR Claim.

8.4.

This indemnity does not cover IPR Claims arising from (i) the combination of the Platform with products or services not provided by PriceShape; (ii) modification of or work performed on the Platform by any person other than PriceShape; (iii) modifications to the Platform made at Customer’s direction; or (iv) Customer’s breach of the Agreement.

9. Liability

9.1.

To the fullest extent allowed by applicable law, in no event will a party be liable for (i) loss or corruption of data; (ii) loss of profits, goodwill, business opportunity, anticipated savings or benefits; or (iii) indirect or consequential loss or damages.

9.2

A party’s total liability for all claims relating to the Platform and the Agreement is limited to the amount of fees (excluding VAT) paid by Customer to PriceShape in the three (3) months period leading up to the event giving rise to the claim.  

9.3

PriceShape will not be responsible for any delay or loss that arises because Customer or any third party fails to cooperate with PriceShape or fulfil its obligations under the Agreement. 

9.4.

Customer will defend and indemnify PriceShape and PriceShape Subcontractors against any third party claim to the extent arising from Customer’s or End Users’ use of the Platform or breach of the terms of the Agreement. 

10. Warranty

10.1.

PriceShape warrants that the Platform, in the form provided to Customer and when accessed and used in accordance with the Agreement, will function in all material respects as set forth on PriceShape.dk. PriceShape does not warrant that the Platform or its outputs will be free from defects, viruses or other harmful components.

10.2.

To the fullest extent permitted by law, no warranties, conditions or other terms are implied under this Agreement. PriceShape does not warrant that the Platform and any outputs from the Platform will (i) be free of errors or defects, or operate securely, continuously or in an uninterrupted manner; (ii) result in Customer’s compliance with laws, rules or regulations of any government or regulatory authority; or (iii) meet Customer’s needs.

10.3.

Customer accepts responsibility for verifying the accuracy of the data inputs to the Platform as well as the outputs from the Platform, e.g. by conducting spot checks. Customer shall inform PriceShape immediately of any discrepancies in the data inputs or outputs.

11. Suspension

11.1

PriceShape may suspend the use of or access to the Platform from time to time: 

 (i) to perform routine or emergency maintenance; 

 (ii) to implement service changes and upgrades to the Platform; 

 (iii) if PriceShape reasonably believes that Customer’s or any End User’s use of the Platform could adversely impact other customers’ or their end users’ use of the Platform; 

 (iv) if there is suspected unauthorised third party access to the Platform; 

 (v) if PriceShape reasonably believes that the suspension is required to comply with applicable law;  

 (vi) if PriceShape becomes aware of any actual or potential IPR Claim; 

 (vii) to mitigate issues caused by any acts or omissions of third parties or issues with any internet infrastructure; or 

 (viii) if Customer is in breach of the Agreement, or if the Platform is, in PriceShape’s opinion, being misused. 

11.2.

Any such suspension or resulting downtime will be limited to the minimum extent necessary in the circumstances, as determined by PriceShape.

12. Term and termination

12.1.

The Agreement shall commence on the date specified in the Contract and shall continue until terminated by either party in accordance with this clause 12.

12.2.

Customer may terminate the Agreement with the termination notice set out in the Contract by sending an email to info@priceshape.dk. Not using the Platform does not constitute a termination by Customer and does not release Customer from paying the agreed fee.   

12.3.

PriceShape may terminate the Agreement with thirty (30) days’ notice to Customer.

12.4.

Either party may terminate the Agreement by providing written notice to the other party if (i) the other party materially breaches its obligations under the Agreement and does not cure such breach within thirty (30) days after receipt of written notice of the breach; or (ii) the other party is, or appears likely to be, unable to pay its debts or becomes insolvent. 

12.5.

Customer shall pay to PriceShape all fees then due and owing in accordance with the Agreement as at the date of termination. Upon termination of the Agreement, Customer and its End Users will immediately cease accessing and using the Platform, and PriceShape may disable access and use with immediate effect. Subject to any applicable law, PriceShape may destroy or otherwise dispose of any of Customer’s content or data that PriceShape has in its possession.

12.6.

Clauses 3.7, 6, 9, 10 and 15, shall remain in full force and effect after termination. 

13. Changes to the Terms

13.1.

PriceShape shall be entitled to amend these Terms from time to time with thirty (30) days’ notice. If Customer does not wish to accept the amendments, Customer may, within the thirty (30) days’ period, give notice to terminate the Agreement with the agreed termination notice, cf. clause 12.2, in which case the current Terms, without amendments, will apply throughout the termination period. 

14. Miscellaneous

14.1.

Any delay in performance caused by fire, flood, earthquake, elements of nature or acts of God, epidemics, pandemics, wars, terrorist acts, site-specific terrorist threats, riots, civil disorders, rebellions or revolutions, government orders, network communications failure or delay, or any other similar cause beyond the reasonable control of a party is not a breach of the Agreement for so long as such conditions prevail and the obligated party continues to use reasonable efforts to mitigate the force majeure event. 

14.2.

PriceShape may use PriceShape Subcontractors to perform the obligations of the Agreement and for the other purposes set out in clauses 6 and 7. PriceShape is solely responsible for the Platform provided and Services performed by the PriceShape Subcontractors.  

14.3.

PriceShape shall be entitled to assign or delegate its rights or obligations under the Agreement to a third party. Customer shall not be entitled to assign or delegate its rights or obligations under the Agreement without PriceShape’s prior written consent, and any assignment or delegation without such consent is void.

14.4.

PriceShape may refer to Customer for marketing purposes (for example as a customer and user of the Platform), including on customer lists and websites, as long as PriceShape does not disclose Customer Confidential Information.

15. Governing law and jurisdiction

15.1.

This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of Denmark, excluding its conflict of laws rules. 

15.2.

Any dispute arising out or in connection with the Agreement, including any disputes regarding the existence, validity, or termination thereof, shall be finally settled by the ordinary Danish courts with the Court in Aarhus as the court of first instance. 

16. Validity

16.1.

These terms are valid from January 20th, 2022 and will replace all previous versions. 

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