Terms of service for consensus-connect – Consensus ApS
Last updated June 2022
1. Scope of the Terms of Service and order of precedence
These general terms of service (“Terms of Service”) comprise all services (“Services”) provided by:
Middelfartgade 17, 2. sal
CVR No. 29194475
(also the “Service Provider”, “we”, “us”,“our” etc.)
- The Customer’s general terms of business do not apply to our delivery of Services.
- These Terms of Service shall be read in conjunction with the License Agreement (“Individual Terms”) and the Data Processing Agreement (collectively the “Agreement Documents”). By purchase of the Services, the Customer agrees to enter into Agreement Documents.
- Before we are able to provide our Services to the Customer, we will need to conclude and sign all Agreement Documents. When a Customer makes a request for a purchase of our Services, we will contact the Customer to define the scope of the project. At the same time we will provide the Customer with the Agreement Documents, including the Data Processing Agreement and the Individual Terms, in which the project is further described together with the Customer.
- If and to the extent there are any discrepancies between the Agreement Documents, the Agreement Documents shall take the following order of precedence:
- The Data Processing Agreement
- The License Agreement / Individual Terms
- These Terms of Service
2. Customer’s acceptance of the Agreement Documents
- The Customer must enter into the Agreement Documents with Service Provider upon the Customer’s purchase of the Services.
- It is voluntary for the Customer to accept the Agreement Documents. However, if the Customer does not accept the Agreement Documents, the Service Provider cannot make the Services available for the Customer.
3. Service Provider’s delivery of the Services
- The Services comprise all services rendered by the Service Provider to the Customer and its designated users, including, but not limited to, digital marketing services, advisory, software and hardware service deliveries for events (Face to Face, virtual and hybrid), meetings and conferences, Training Platforms, Onboarding platforms, Engagements platforms and AR projects and any support and helpdesk services related hereto (see the Service Provider’s Website (consensus.dk) for further information).
- The Service Provider provides to the Customer – on the terms in the Agreement Documents – a limited, non-transferable and non-exclusive license to use the Services with designated users for internal usage only.
- The Customer’s license to use the Services is subject to the Customer and its designated users using the Services in accordance with the Agreement Documents and any other written instructions provided by Service Provider, including e.g. user manuals and available instruction videos.
- Unless otherwise has been specifically agreed in the Individual Terms, the Services are made available to the Customer “as is” in the most recently prepared and released version applicable. The Services will not be configured to the Customer’s individual needs by the Service Provider unless such individual configuration has been specifically agreed between the Parties and then only upon payment of applicable fees.
- The Service Provider makes the necessary hardware and software available for the continuous operation of the Services. Hardware is placed in an operation centre with the Service Provider and/or with a third-party Service Provider appointed by the Service Provider.
- The Service Provider has the right to use subcontractors to perform the Services, in whole or in part, without the Customer’s pre-approval. With respect to the Service Provider’s use of sub-data processors, we refer to the Data Processing Agreement.
- To the extent specified in section 5, the Service Provider shall oversee and handle the operation of the Services, including support, maintenance and upgrading.
- If the Parties have agreed that the Customer can test the Service Provider’s online platform before accepting delivery of the Services, the following shall apply:
- The Parties will agree in the Individual Terms whether the testing shall include beta testing (Real Time Environment testing) or alpha testing (simulated testing) only and whether the testing shall take place online, at Service Provider’s premises or at the Customer’s premises.
- The Service Provider will initiate and plan the testing, but the Customer must actively participate in the testing and allocate the necessary resources to ensure that the testing can be done within the agreed timeline. The Customer must provide the Service Provider with the information necessary to perform the testing.
- The testing will be concluded with an “acceptance test” whereby the Customer will be given the opportunity to test Service Provider’s online portal before accepting delivery of the Services. The Service Provider will notify the Customer of the time and place for the acceptance test in accordance with the agreed time
- If any material defects are discovered in the acceptance test, the Service Provider must remedy the defects as soon as reasonably possible. When the Service Provider has remedied all material defects, the Service Provider will notify the Customer hereof.
- When the Service Provider has remedied all material defects, and if no material defects are discovered in any subsequent testing (if any), the Customer is obligated to approve the acceptance test and take delivery of the Services.
5. Operation and maintenance of the Services
- The Service Provider shall render the Services to the Customer in accordance with the Agreement Documents.
- The Services must always be provided in due time, and in a quality, to an extent and in a way that complies with normal good practice recognized within the Service Provider’s line of business.
- The Service Provider is not liable for any interruptions in operation that may occur in the transmission of data between the Service Provider’s operations centre and the Customer, its internet domain(s) or licensed users, unless such interruptions are caused by errors in the Services.
- The Service Provider offers support to the Customer and its designated users, which is available on the Service Provider’s Website. For queries submitted within normal business hours (8 AM – 4 PM CET) and during business days (Monday – Friday), the Service Provider endeavours to answer queries submitted via the contact email address within 24 hours from the Service Provider’s registration of the query in question. For queries submitted outside of business days and/or normal business hours, the Service Provider will answer queries submitted via the contact email address as soon as possible from the Service Provider’s registration of the query in question. The Service Provider does not guarantee any specific resolution times.
- Subject to section 3 – 6.5 below, the Service Provider must remedy identified errors in the Services as part of providing support.
- Critical errors, such as errors that involve unavailability of the Services or very limited availability, shall be started to be remedied by the Service Provider without undue delay from the Customer’s notification hereof to the Service Provider. Non-critical errors shall be started to be remedied within a reasonable period after the Customer’s notification to the Service Provider of the non-critical error and/or the Service Provider’s registration thereof.
- If errors in third-party software are observed, the Service Provider 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 Service Provider is obligated to use reasonable efforts to create a temporary “work around”.
- If the Customer reports errors in the Services to the Service Provider and it is later documented that the error is not caused by errors in the Services but is caused by the Customer’s or its designated users’ misuse, defective communication lines or any similar errors beyond the Service Provider’s control or responsibility, the costs for the remedial action shall be borne by the Customer and the Service Provider will then be entitled to a fee, calculated on the basis of the specific time spent and at the Service Provider’s hourly rates applicable at the time of the Service Provider’s remedial actions.
7. Customer’s use of the services
- Administration of your account
- The Customer shall be responsible for the overall administration of the Customer’s license to use the Services, including, if relevant, allocation of licenses between the Customer’s designated users.
- Subject to section 1.3 below, the legal person purchasing the Services will be the contracting party (“Account Owner”) for the purposes of our Agreement Documents.
- If you purchase the Services on behalf of your employer, your employer will be the Account Owner. If you are purchasing the Services on behalf of your employer, you represent and warrant that you have the authority to enter into the Agreement Documents.
- All users must provide full legal name and a valid email address, and any other information needed in order to complete the signup process.
- Customer and its designated users acknowledge that Service Provider will use the email address(es) provided as the primary method for communication.
- Customer and its designated users are responsible for keeping the password secure. Service Provider is not liable for any loss or damage from your failure to maintain the security of your account and password.
- Customer is responsible for all activity and content, including but not limited to Customer Content (see section 13) uploaded by the Customer and its designated users such as videos, files, data, graphics, photos and links that is uploaded under your Customer account. You must not transmit any computer viruses or any code of a destructive nature.
- A breach or violation of any term in the Agreement, including a breach or violation of the limitations set forth in section 2 below, may result in an immediate termination of the Services.
- Limitations of use
- The Customer (and its designated users) 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;
- Remove, modify or add information of the Service Provider’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.
- The Customer assumes the full liability and risk of planning the user administration for its designated users in such a way that usernames and passwords cannot be misused to obtain unauthorized access to the Services.
- If a designated user authorized by the Customer uses the Services in violation of the Terms of Service or the Data Processing Agreement, the Service Provider is entitled to exclude such designated user(s) from the Services if the designated user(s) does not immediately comply with the Service Provider’s instructions upon notification thereof.
- The Customer (and its designated users) may not:
8. Fees, payment terms and price adjustments
- For purchase of the Services, the Customer shall pay the agreed license fees. The license fees to be paid by the Customer will be specified in the License Agreement (Individual Terms).
- Danish VAT will be charged separately (if applicable).
- The license fees may be subject to annual indexation according to the “Producer price Index for Services” as published by Statistics Denmark. However, the license fees will never be subject to an annual decrease even if the index price regulation is negative.
- In addition to annual indexation of the license fees, cf. section 1.3 above, the Service Provider may claim a price adjustment to the license fees subject to at least three (3) months’ prior written notice hereof to the Customer.
- Payment Terms
- The Service Provider’s invoices are due for payment upon receipt, the last due payment date being 14 days after the invoice date. If an invoice has not been settled for a period of more than 14 days after the invoice date, the Service Provider is entitled to terminate the Customer’s license to use the Services until the invoice and any other amounts due have been paid by the Customer.
9. Personal data
- With respect to all Personal Data entered, transferred or stored in the databases of the Service Provider or third-party Service Providers related to the Service Provider’s provision of the Services, the Customer is the data controller, and the Service Provider is the data processor (as defined in the GDPR).
- The Service Provider’s 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 upon the Customer’s purchase of the Services or a free trial period together with the Agreement Documents.
- The Service Provider warrants to the Customer that the Service Provider holds all permits, licenses, approvals etc. required for Service Provider to sustain operation and maintenance of the Services in accordance with the Agreement Documents.
- The Customer warrants to the Service Provider that the Customer does not use the Services for collection, registration, storage, processing or manipulation of data in violation of any applicable legislation.
- 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 designated user accounts or otherwise permit more users to access the Services than permitted.
11. Rights of ownership and use
- Within the scope of the Agreement Documents, the Customer acquires a limited, non-exclusive, non-transferable right to access and use the Services and any related services provided by the Service Provider to the Customer.
- With due respect of any third-party rights, the Service Provider has and will maintain the full, undivided and unrestricted right of ownership and/or user right in all aspects of the Services. This also applies to the e-learning and all related material, user manuals, reporting formats, modification or customization made to the Services, training material and other tangible and intangible assets and know-how which the Service Provider has developed or which the Service Provider subsequently may (perhaps in cooperation with the Customer) develop for the Customer’s use of the Services.
- The Customer has and will maintain full and unrestricted right to customer data provided and developed by the Customer (incl. Customer Content and Personal Data) and provided to the Service Provider as part of the Services and uploaded by the Customer in connection to the Customer’s use of the Services.
- The Service Provider is entitled to use anonymized data for historical, statistical, scientific or similar purposes.
- 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.
12. Intellectual property rights
- With due respect of any third-party rights, all rights of ownership and title to the Services – including intellectual property rights such as e-learning and all related material developed by the Service Provider, copyrights, design rights, patents, inventions, ideas, know-how and trademarks – remain the sole property of the Service Provider and/or its licensors. This includes all rights developed by or for the Service Provider in the course of providing the Services, technical support or other services to the Customer.
- E-learning and all related material developed by the Service Provider remains the sole property right of the Service Provider. Nothing in the Agreement Documents shall be deemed to transfer of the intellectual property rights from the Service Provider to the Customer of such material.
- Nothing in the Agreement Documents or in the cooperation between the Parties transfers ownership of any intellectual property rights in the Services to the Customer.
- The Service Provider may ask for the Customer’s consent to use the Customer’s name and logo as reference on the Service Provider’s Website.
13. Customer Content
- The Customer has the right to create its own E-learning courses and the Service Provider will make the E-learning courses available on the Service Provider’s online portal. We do not claim any intellectual property rights over the e-learning material you provide to the Service Provider’s Services. All e-learning course material developed by the Customer (“Customer Content”) remains the Customer’s property. Customer also retains ownership of all content developed by the Customer and submitted by the Customer as part of the Customer Content. However, the Service Provider have and retain all rights to the software, programming, technical design, structure etc. of the online portal.
- You can ask Service Provider to remove Customer Content at any time through Service Provider’s contact address.
- Notwithstanding section 1 above, by uploading Customer Content, you agree: (a) allow Service Provider to display and store your Course Content; and (b) that Service Provider can, at any time, review all the Course Content submitted by you to its Services.
- Service Provider will (within reason) make the necessary changes to the front-end of the software (landing page, course description etc.) to adapt the Services to the Customer Content.
- The Customer must ensure that the Customer Content is appropriate and in accordance with Service Provider’s ethical standards. Service Provider has the right to refuse the Customer Content if the Service Provider reasonably deems the Customer Content inappropriate.
- The Customer is responsible for the Customer Content’s compliance with any applicable laws or regulations. This also applies to any advertising, marketing content or marketing messages, sponsored content or similar included in the Customer Content. The Customer must indemnify the Service Provider for any damages that the Service Provider suffers due to the Customer Content’s non-compliance with applicable laws or regulations.
- The Parties accept, both for the duration of the Customer’s free trial of or Purchase of 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 Customer’s client if such information originates from or regards such client; or (c) information which a Party can document has been created by the Party itself.
- 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 the Agreement Documents.
15. Term and Termination
- The Services commence upon the Customer’s purchase of the Services and applies for period agreed in the Individual Terms.
- The Services can be terminated by the Customer at any time by providing the Service Provider with six (6) months’ written notice thereof. The Service Provider does not provide refunds of any paid fees in case of the Customer’s termination of the Services.
- With effect from the date of expiry of the Services, all licenses shall terminate and the Customer’s right to use the Services will lapse.
- In case of the Customer’s gross violation of use of the Services, the Service Provider may terminate the Services. If the Services are terminated due to the Customer’s misuse of the Services, the Service Provider will still be entitled to the entire license fees according to section 1.
16. Breach and compensation
- If a Party breaches its obligations under the Agreement Documents, the other Party is entitled to order the Party in breach to remedy the breach within a period of 14 days 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 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 applies for reconstruction or is administered in bankruptcy, the Agreement Documents may, notwithstanding this section 1, be terminated immediately and without prior notice, unless otherwise dictated by mandatory law.
- In the event of breach, either Party may claim compensation under the general rules of compensation in Danish law. However, see section 3 below.
- Limitations to the Service Provider’s liability
- You expressly understand and agree that Service Provider shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the Services.
- In no event shall Service Provider or our licensors be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our Website, our Services or the Agreement Documents (however arising including negligence).
- Use of the Services is at the Customer’s sole risk. The Services is provided on an ”as is“ and ”as available“ basis without any warranty or condition, express, implied or statutory, apart from the warranties expressly stated in section 10.
- Service Provider does not warrant or guarantee that the Services will be uninterrupted, timely, secure, or error-free.
- Service Provider does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.
- Service Provider does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations, or that any errors in the Services will be corrected.
- The Service Provider’s obligation to compensate through damages and/or proportionate reduction of the license fee or other fees is subject to the following limitations:
- the Service Provider 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 using the Service Provider’s Services.
- the Service Provider shall not pay damage or compensate the Customer for any indirect or consequential loss, including, but not limited to, loss of expected earnings, expenses for remedial action of damage to or errors in data uploaded by the Customer, internal time spent by the Customer or third parties hired by the Customer on remedial actions, loss or reconstruction of data, or any loss resulting from the cover of purchases made.
- The maximum compensation which the Service Provider may be ordered to pay to the Customer under the service licence agreement cannot exceed the lowest amount of either (i) the annual licence fee paid during the latest twelve (12) months prior to the month in which the damage has occurred or (ii) DKK 150,000.
- Any disregard of the agreed limitations of liability is subject to the general rules of Danish law.
17. Force majeure
- 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, epidemics and pandemics (e.g. COVID-19), public orders or lockdowns, 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 has occurred.
- The Customer is not entitled to assign any rights and obligations under the Agreement Documents to any third party without the prior written consent of the Service Provider.
- The Service Provider is entitled to assign its rights and obligations under the Agreement Documents with prior written notice to the Customer.
19. Other provisions
- Venue and choice of law
- The Agreement Documents 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 the Agreement Documents through negotiations. Disputes, which cannot be amicably resolved by the Parties, must be brought before the ordinary courts of Denmark with the City Court of Aarhus as agreed venue with access to referral and appeal in accordance with the Danish Administration of Justice Act.
- Unity and entirety of the Agreement Documents
- The Agreement Documents form the complete agreement between the Parties and replace all previous oral and written agreements between the Parties.
- Terms and expressions with capital first letters used in the Agreement Documents shall have the meaning set out in this section 20 or as otherwise defined in the Agreement Documents.
- “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
- “Agreement Documents” means the License Agreement (the “Individual Terms”) the Data Processing Agreement and these Terms of Service.
- “Confidential Information” means Personal Data and all information of a technical, commercial, 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.
- “Customer”, “you”, “yours” etc. shall include the customer and all of its designated users of the Services, including free trial users or other subscribers of the Services.
- “Customer Content” has the meaning set forth in section 1.
- “Data Controller” and “Data Processor” means “controller” and “processor” respectively, as defined in the GDPR.
- “Data Processing Agreement” means the Data Processing Agreement entered into between the Customer and the Service Provider in connection with the Customer’s free trial of or purchase of the Services. The Data Processing Agreement is available on the Service Provider’s Website.
- “GDPR” means the General Data Protection Regulation (EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons regarding the processing of personal data and on the free movement of such data.
- “Individual Terms” means the individual terms agreed between the Parties set out in the License Agreement, which shall take precedence over these Terms of Service.
- “Parties” means the Customer and the Service Provider jointly and each shall be referred to as a “Party”.
- “Personal Data” means 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.
- “Services” mean all services rendered by the Service Provider to the Customer and its designated users, including, but not limited to, digital marketing services, advisory, software and hardware service deliveries for events, meetings and conferences and any support and helpdesk services related hereto.
- “Website” means our website consensus.dk or any related subsites and subdomains.
- “Service Provider” means Consensus ApS, CVR No. 29194475, Middelfartgade 17, 2. DK-2100 Copenhagen, Denmark, and any of its Affiliates.