Terms & Conditions
These terms of service (terms) constitute a contract between you and Whyser and govern use of and access to the service and site by You, Agents and End-users whether in connection with a paid subscription to the service or a free trial of the service.
Effective date: January 1st, 2020
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY SIGNING THIS CONTRACT PHYSICALLY, ELECTRONICALLY, OR BY CLICKING “ACCEPTED AND AGREED” EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE.
These Terms of Service constitute an agreement (this “Agreement”) by and between Whyser ApS (CVR: ), Vesterbrogade 26, 2.,1620 Copenhagen V, Denmark (“Provider”, “We”, “Us” or “Our”) and you (“Recipient” or “Customer”).
(A) Whyser ApS provides software as a service strategy management system (the “System”) via (“Our Website”). The System includes features and services that are presented on Our Website. The provider may change the features and services from time to time, in its sole discretion. The system is further described in the documentation available in the system “the Documentation”.
(B) The parties are entering into this agreement (which includes the data processing agreement in Annex A) and one or more customer specific contract (the “customer contract”). The customer contract will form part of this agreement and specify: (1) the product plan applying to Customer’s use of the System, which will determine, as described in the Documentation: (a) the functionality that will be made available to Customer by the System, and (b) the System support services to be performed by Whyser (the “Support Services”), (2) any professional services to be performed by Whyser (the “Professional Services” and together with the System and the Support Services, the “Services”), and (3) the maximum number of users of Customer and any Customer affiliates specified in the customer contract that may be designated by Customer to access the System (“Authorised Users” and “Permitted Affiliates”).
(C) ”Account” refers to the Service plans and features selected by Recipient at the time of contract commencement and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through the Whyser Website or other means.
1. PROVISION OF SYSTEM AND SERVICES
1.1 Whyser shall, during the subscription term specified in the customer contract (as may be extended in accordance with this agreement) (the “Subscription Term”), and in accordance with this agreement: (a) provide the Authorised Users with access to and use of the System, (b) perform the Support Services for Customer to the service levels specified in the customer agreement, and (c) perform the Professional Services in accordance with the customer agreement. Customer shall only use the System, Documentation and the Services for its internal business operations and in accordance with this agreement and shall use the System in accordance with the documentation in the system.
1.2 Customer shall designate the Authorised Users, who will typically be employees, consultants and contractors of Customer and the Permitted Affiliates, up to the maximum number specified in the customer agreement, and shall procure that only one individual uses each Authorised User account and accounts are not shared. If the Customer wishes to procure additional Authorised User accounts above the maximum it shall execute an additional customer contract or update the existing contract by contacting the Provider. The additional Authorised Users shall be coterminous with the pre-existing Subscription Term and Customer shall pay additional “Subscription Fees”, as specified in the customer contract, for the users at the rate specified in the customer contract, pro-rated from the date of activation to the end of the current Subscription Term. The Customer shall procure that the Permitted Affiliates and the Authorised Users comply with this agreement.
1.3 Whyser shall use reasonable efforts to make the System available in a month to the level specified in the customer contract (“Service Availability”), excluding the following excused outages: (a) scheduled maintenance outside 9am to 5pm on Copenhagen business days (“Business Hours” and “Business Days” respectively) where Whyser has given at least four hours’ notice during Business Hours, and Whyser will give longer notice where reasonably possible, (b) unscheduled maintenance in the case of actual or anticipated emergency, and (c) unavailability for reasons beyond Whyser’s reasonable control. If Service Availability of the System in a month is not met (excluding excused outages) then Whyser shall, upon notification by Customer to Whyser within 30 days of the end of the month in question, compensate the customer with a credit of 10% of your subscription fees for the month (excluding VAT) up to a maximum of 50% of that applicable monthly fee, for each 1% of non-availability of the System below the Service Availability, calculated in minutes. Any credit will be applied against subsequent subscription fees due to the Provider.
1.4 Whyser shall (a) perform the Services substantially in accordance with this agreement and with reasonable skill and care, (b) comply with laws applicable to this agreement and (c) maintain any licences and consents that are needed to provide the Services and the System.
1.5 Whyser shall use reasonable efforts to promptly correct any material non-conformance of the System as detailed in the Documentation, however Whyser will not be liable for (a) the System or Services to the extent damage is caused by these being used contrary to Whyser’s instructions or this agreement or modified other than by, or on behalf, of Whyser, or (b) the Customer’s connection to the System over the internet or integration to the System. Customer is responsible for ensuring that the System and Services meet its requirements and is fit for purpose. If Customer does not perform its obligations in a timely manner, then Whyser may reasonably adjust the delivery plan for the Services.
1.6 Whyser may modify the Documentation and System if it does not materially reduce the functionality of the System (and may provide alternative features that have materially the same benefits as the previous feature).
1.7 Whyser may use the name and logo of Customer for promotional and marketing purposes.
2. CUSTOMER DATA
2.1 Customer shall own any data or information uploaded by Customer and/or its Authorised Users into the System or provided by Customer to Whyser in connection with the Services (“Customer Data”). Customer shall be responsible for the content of the Customer Data. If the customers decide to move to another solution, the provider will help you export the customer data for a nominal fee.
2.2 Whyser shall back-up Customer Data as set out in the customer contract. If there is any loss or damage to Customer Data due to a System error, then Whyser shall use reasonable efforts to restore the lost or damaged Customer Data from the latest back-up as its sole liability. Whyser shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any party other than Whyser or its subcontractors.
3. CUSTOMER'S OBLIGATIONS
3.1 Customer shall (a) co-operate with Whyser and provide any necessary information, as required to provide the Services, (b) comply with laws applicable to this agreement and maintain any necessary licences and consents to allow the use of the Customer Data in accordance with this agreement, (c) procure that the Authorised Users keep their System passwords confidential, and (d) use reasonable efforts to prevent unauthorised access or use of the System and the Documentation (and if Customer is aware of unauthorised access or use, promptly notify Whyser).
3.2 Customer shall not (and Whyser may suspend Customer’s access to the System if any of the following occur): (a) access, store, distribute or transmit any viruses or any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, discriminatory or offensive, (b) except as expressly permitted under this agreement or allowed by any applicable law that is incapable of exclusion: (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any portion of the System or Documentation, or (ii) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the System, (c) use the System, Services or Documentation to provide services to third parties or build a product or service which competes with the System or Services, (d) subvert any security restrictions imposed by Whyser, including attempting to obtain, or assist others in obtaining, access to the System, other than as permitted under this agreement, (e) use the System in a way that adversely affects the System or other users use of the System, or (f) make the Services, System or Documentation available to any third party or assist third parties in obtaining access.
4. CHARGES AND PAYMENT
4.1 Customer shall pay Whyser the charges specified in the customer contract for Customer’s use of the System and the Services (the “Charges”). Unless otherwise stated in the customer contract, the Charges are (a) stated in Danish kroner, (b) exclusive of value added or equivalent tax, which if payable, will be additionally payable by Customer at the appropriate rate, and (c) non-cancellable and non-refundable (except if this agreement is terminated by Customer for Whyser’s material breach, in which case Whyser will refund any prepaid fees covering the remainder of the then-current Subscription Term).
4.2 Subscription Fees shall be invoiced on or around the “Effective Date” for the initial Subscription Term (each as specified in the customer contract) and at the beginning of each subsequent renewal period (as specified in the customer contract) (“Renewal Periods”) in advance thereafter (or in accordance with section 1.2). Professional Services fees shall be invoiced in accordance with the customer contract.
4.3 Customer shall reimburse Whyser for any transaction fees that may be incurred by Whyser in connection with payments of the Charges due from the Customer’s bank. Customer shall be responsible for, and not withhold or deduct, any taxes on the Charges.
4.4 If Whyser has not received payment within 30 days of receipt of an invoice and has contacted (or attempted to contact) Customer both by email and by telephone referring to its rights of suspension, then (a) Whyser may disable Customer's access to the System and suspend the Services, and (b) interest shall accrue on a daily basis at an annual rate equal to 3% over the then current base lending rate of Whyser's bankers in Denmark. If a Charge is 30 days or more overdue, then Customer shall reimburse Whyser for Whyser’s reasonable costs incurred in the collection of the overdue amount from Customer.
4.5 Whyser may increase the Subscription Fees at the start of each Renewal Period by giving not less than 60 days' prior written notice to Customer.
5. PROPRIETARY RIGHTS
5.1 Whyser shall have a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the System and Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Authorised Users relating to the operation of the System and Service.
5.2 Nothing in this agreement will be deemed to transfer any intellectual property rights between the parties. Customer may use the System by viewing it in a browser or printing out copies for Customer’s use, but Whyser reserves all other rights.
5.3 Customer grants Whyser a non-exclusive licence to use the Customer Data for the purposes of providing the System and Services.
The parties shall each (a) keep confidential, (b) only use for the purposes of this agreement and (c) only disclose in confidence to the recipient’s employees, contractors and advisors who need to know, the confidential information of the other party received in connection with this agreement, unless the confidential information (i) has become public knowledge otherwise than through a breach of this section, (ii) can reasonably be shown to have been known by the recipient before being received from the discloser, (iii) was obtained by a third party that had not breached a duty of confidentiality, or (iv) is required to be disclosed by law or a party’s regulatory body. Upon termination of this agreement each party shall on request promptly return or take reasonable steps to delete the confidential information of the other party. This section shall survive termination of this agreement.
7.1 Whyser shall defend and indemnify Customer and the Permitted Affiliates, and their respective officers, directors and employees from and against:
7.1.1 any claim brought by a third party that the Services, Documentation or System infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of any such infringement claims, and
7.1.2 any third party or regulatory claims, actions, proceedings, or fines, and for any related losses, damages, expenses and costs, to the extent arising out of or in connection with any breach by Whyser of the Data Processing Agreement. “Whyser Affiliates” shall mean all direct or indirect holding companies of Whyser from time to time, and all direct and indirect subsidiary companies of Whyser or of any such holding companies from time to time.
7.2 Customer shall defend and indemnify Whyser and the Whyser Affiliates, and their respective officers, directors and employees from and against:
7.2.1 any claims, actions, proceedings, losses, damages, expenses and costs arising in connection with the use of the System and/or Documentation in breach of this agreement by the Customer or by any person under the auspices or control of the Customer or any Permitted Affiliate; and
7.2.2 any third party or regulatory claims, actions, proceedings, or fines, and for any related losses, damages, expenses and costs, to the extent arising out of or in connection with any breach by Customer of the Data Processing Agreement.
7.3 Section 7.1 and 7.2 are subject to:
7.3.1 the indemnifying party being given prompt notice of any matter for which indemnified party wishes to be indemnified;
7.3.2 the indemnified party providing reasonable co-operation in the defence and settlement of the relevant claim, at the indemnifying party's expense; and
7.3.3 the indemnifying party being given sole authority to defend or settle the relevant claim, provided that no settlement shall be made which prejudices the indemnified party’s rights or imposes any obligations on it without its prior written approval (such approval not to be unreasonably withheld or delayed).
7.4 In the defence or settlement of any third party claim, Whyser may procure the right for the Customer to continue using the System, replace or modify the System so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement on two Business Days' notice to the Customer without any additional liability.
7.5 Whyser will not be liable to the Customer to the extent that an alleged infringement is based on:
7.5.1 a modification of the Services or Documentation by anyone other than Whyser or its subcontractors;
7.5.2 Customer's use of the Services or Documentation in a manner contrary to the instructions given by Whyser; or
7.5.3 Customer's use of the Services or Documentation after notice of the alleged infringement.
7.6 The foregoing states Customer's sole and exclusive rights and remedies, and Whyser's entire obligations and liability, for infringement of any intellectual property right.
7.7 Each party shall make reasonable efforts to mitigate any loss, damage or liability it may suffer or incur as a result of a breach by the other party of this agreement or in respect of which it seeks indemnification from the other party under this agreement.
8. LIMITATION OF LIABILITY
8.1 Except as expressly and specifically provided in this agreement and to the fullest extent permitted by applicable law:
8.1.1 Customer assumes sole responsibility for all information, notifications, results, data or disclosures (collectively “Results”) obtained or delivered in the course of the use of the Services and the Documentation, and Whyser expressly disclaims any and all responsibility and liability in respect of such Results;
8.1.2 Whyser shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Whyser by Customer in connection with the Services, or any actions taken by Whyser at Customer's direction;
8.1.3 all terms implied by law are excluded from this agreement; and
8.1.4 the System and the Documentation are provided to the Customer on an "as is" basis.
8.2 Nothing in this agreement excludes or restricts liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or otherwise to the extent such exclusion or limitation is not otherwise permitted by law.
8.3 Subject to section 8.2:
8.3.1 neither party shall be liable to the other party, whether in contract, tort (including for negligence), breach of statutory duty or otherwise for (a) any loss of profits, loss of business, depletion of goodwill or similar losses or loss or corruption of data or information, or pure economic loss, or (b) for any indirect or consequential loss; however arising under or in connection with this agreement; provided that this section shall not apply to limit or exclude any obligation to pay the Charges; and
8.3.2 the total and aggregate liability of (a) Whyser and the Whyser Affiliates and (b) Customer and the Permitted Affiliates, in each case whether in contract, tort (including for negligence), breach of statutory duty or otherwise, arising under or in connection with this agreement shall be limited to 125% of the total Subscription Fees paid for the Authorised Users during the 12 months immediately preceding the date on which the claim arose.
9. TERM AND TERMINATION
9.1 This agreement shall commence on the Effective Date and continue for the initial Subscription Term and for successive Renewal Periods thereafter, unless (a) either party notifies the other of its intention to terminate, giving at least 30 days’ notice, to take effect at the expiry of the initial Subscription Term or then current Renewal Period, or (b) otherwise terminates in accordance with this section.
9.2 Either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party:
9.2.1 fails to pay any amount due under this agreement and remains in default not less than 30 days after being notified in writing to make such payment;
9.2.2 commits a material breach of any other term of this agreement which breach is irremediable or (if remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
9.2.3 the other party is subject to any of the following events (or any event analogous to any of the following in a jurisdiction other Denmark) in relation to the relevant entity: becomes insolvent, enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or becomes unable to pay its debts or suspends or ceases, or threatens to suspend or cease, all or a substantial part of its business.
9.3 On termination of this agreement for any reason: (a) Customer shall cease using the System and the Documentation; (b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; (c) without prejudice to Whyser’s rights in respect of Anonymised Data as set out in the Data Processing Agreement, Whyser shall delete the Customer Data within 90 days of the termination of this agreement, provided that Customer Data contained on backup copies of Whyser’s databases shall not be deleted for up to 180 days from the date of termination, upon expiry of the then-current backup, and Customer shall be entitled to export aggregated Customer Data via the data export functionality within the System; and (d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination shall not be affected.
10.1 Neither party shall have any liability for non or delayed performance by events beyond its reasonable control, provided that the other party is notified of such event and its expected duration and such affected party uses reasonable endeavours to mitigate its effect. If a party is prevented due to any such events from substantially performing its obligations under this agreement for a period in excess of 30 consecutive days, then the other party may terminate this agreement on 30 days’ notice.
10.2 If there is an inconsistency between the customer contract and this agreement, the customer contract shall prevail
10.3 No variation of this agreement shall be effective unless it is in writing and signed by the parties’ authorised representatives.
10.4 No failure or delay by a party to exercise any right or remedy shall constitute a waiver of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.5 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to any rights or remedies provided by law.
10.6 If any provision of this agreement is found to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
10.7 This agreement constitutes the entire agreement between the parties and supersedes all previous agreements (written or oral) relating to its subject matter.
10.8 Each party acknowledges that it does not rely on, and shall have no remedies in respect of, any statement not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
10.9 This agreement may not be assigned or transferred by either party without the prior written approval of the other but may be assigned or transferred by either party without the other’s consent to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
10.10 Nothing in this agreement shall create a partnership between the parties or authorise either party to act as agent on behalf of the other.
10.11 This agreement does not confer any rights on any third person or third party.
10.12 Any notice under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid firstclass post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in this agreement. A notice delivered by hand shall be deemed received when delivered (or if delivery is not in Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed received at the time of transmission.
10.13 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with Danish law and subject to the exclusive jurisdiction of the Danish courts.
ANNEX A: DATA PROCESSING AGREEMENT
1.1 Each party shall comply with its respective obligations under the applicable law and regulation concerning data protection and/or privacy in or relating to the European Union countries and the UK, including the EU General Data Protection Regulation (2016/679) (“GDPR”) and local implementing law or regulations (“Data Protection Legislation”). The terms “process”, “controller”, “processor”, “personal data” and “data subject” shall have the same meaning as in the applicable Data Protection Legislation.
1.2 Subject to section 1.4 of this Annex, Customer will be the controller of the personal data in the Customer Data (“Personal Data”) and Whyser will be the processor. Whyser shall:
1.2.1 process the Personal Data only to the extent, and in such a manner, as is necessary for performing this agreement and in accordance with Customer’s written instructions from time to time and shall not process the Personal Data for any other purpose. Where Whyser is required by law to process the Personal Data, Whyser will promptly inform Customer of such legal requirement prior to carrying out the processing, unless it is prohibited from doing so by law;
1.2.2 limit access to Personal Data to those of its authorised personnel who need access to it in order to meet Whyser’s obligations under this agreement, ensure that all such personnel are bound by appropriate obligations of confidentiality and ensure that all such Personal Data is kept separate from any Personal Data of Whyser or of any other client of Whyser;
1.2.4 only engage sub-processors in accordance with section 3 of this Annex;
1.2.5 promptly notify Customer if it receives any complaint, notice or communication which relates to the processing of the Personal Data, or any request from a data subject exercising any rights pursuant to the applicable Data Protection Legislation and reasonably cooperate with and assist Customer in relation to any such complaint, notice communication, or request and shall not disclose any of the Personal Data to any data subject or to a third party other than at the request of Customer, or as provided for in this Data Processing Agreement;
1.2.6 promptly notify Customer if it becomes aware of any unauthorised or unlawful processing, loss of, damage to, disclosure of, access to or destruction of the Personal Data (“Data Breach”) and provide Customer with any co-operation, information and assistance in respect of any Data Breach, reasonably requested by Customer;
1.2.7 unless otherwise requested by the Customer, upon termination of this agreement, Whyser will delete the Personal Data in accordance with the terms of the customer contract.
1.2.8 Upon reasonable notice, Whyser will make available to the Customer or grant to the Customer and its auditors and agents, a right of access to and to take copies of any information or records kept by Whyser pursuant to this Data Processing Agreement, solely to the extent necessary to demonstrate Whyser’s compliance with the Data Protection Legislation and provided always that this section shall not require Whyser to disclose any confidential information relating to Authorised Users or any other personally identifiable data of Authorised Users save to the extent required by the Data Protection Legislation. In relation to any subprocessors that are engaged pursuant to this agreement, the Customer acknowledges and agrees that it is sufficient, for the purposes of satisfying the requirements of this section, that Whyser has a right to audit those sub-processors on behalf of the Customer, subject to reasonable restrictions.
1.4 Whyser may anonymise Customer Data in which case: (a) the data (“Anonymised Data”) will not be treated as Personal Data provided that it is not personal data for the purposes of the GDPR, (b) Whyser may use the Anonymised Data for statistical or benchmarking purposes to contribute towards the development of Whyser’s products and services during or after the term of this agreement and will not be required to delete the Anonymised Data on termination. (c) Certain features of the system might become powered by machine learning in future versions of the system. To make these features available to the Customer, Customer Data may be anonymized and aggregated.
1.5 For the purposes of section 1.2.1 of this Annex, Customer shall not direct Whyser to process the Personal Data in a way that is inconsistent with Whyser’s standard services, or, require Whyser to provide Customer Data other than in aggregate form, unless otherwise agreed with Whyser. Customer keeping its account active shall be deemed to be an instruction to Whyser to continue to process the Personal Data to allow use of the System. Whyser shall anonymise Personal Data after it has been held on the System for more than five years (unless the customer account is still kept active).
1.6 Customer shall not (and shall not permit its Authorised Users to) configure the System dashboard or other interface by reference to, or devise or undertake any analysis using the System by reference to, any special category of personal data (within the meaning of the GDPR), namely: racial or ethnic origin; political opinions; religious or philosophical beliefs; trade union membership; genetic or biometric data; health data; sex life or sexual orientation, without obtaining Whyser’s prior written agreement. If Whyser agrees, Customer shall ensure such processing complies with an appropriate legal basis in accordance with applicable Data Protection Legislation.
1.7 Whyser shall be paid its reasonable costs by Customer to support any Customer-requested actions under section 1.2 of this Annex, including audits, subject access requests or Customer’s interactions with regulators (unless required as a result of Whyser breaching this agreement).
1.8 Customer shall ensure, and shall procure that all Permitted Affiliates shall ensure that:
1.8.1 it is entitled to transfer any relevant Personal Data to Whyser, such that Whyser may lawfully use, process and transfer such Personal Data in accordance with this agreement on Customer's behalf; and
1.8.2 all relevant Data Subjects have been informed of such use, processing, and transfer as required by all applicable Data Protection Legislation.
2. OVERSEAS DATA TRANSFERS
3. USE OF SUB-PROCESSORS