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1. Field of
application
1.1. These terms of service (TOS") cover the survey
service supplied by Enalyzer A/S ("Enalyzer") described in section
2 (the "Products").
1.2. By signing up to the use of the Products, you
as the customer (the "Customer") signify a binding acceptance of
the TOS.
2.
Products
2.1. The Products are described on the related Enalyzer
website where these TOS are posted.
2.2. The Products are standard products and Enalyzer
does not warrant that they will fulfil the Customer's specific
needs, nor that the use of the products will produce certain
results for the Customer.
2.3. The Products are developed for user-unwinding
through the browser, Internet Explorer 6.0, or a more recent
version installed on a Windows platform. The products are partly
distributed on the Microsoft Excel platform and compatible from
2003 versions. All administration of surveys and measurements work
on the above browser and platform only. Besides some reporting
elements are available on Microsoft Excel 2003 an newer
versions.
2.4. Enalyzer guarantees that the Customer's relations
(respondents) are able to answer questionnaires by using Explorer
6.0 ++ or Netscape Navigator 6.0 ++. Enalyzer also supports a
number of other browser technologies, but does not provide any
guarantees in this respect.
3.
Registration
3.1. The Customer is obligated to submit complete and
correct information in connection with setting up user accounts for
the Products. Enalyzer shall, without undue delay, be informed
about changes in the above information.
3.2. The Customer is responsible for a secure and
confidential filing of username and password to the Products. If
the Customer becomes aware that the username or password is being
abused or that other unauthorized use of the Products has taken
place, the Customer shall promptly inform Enalyzer.
3.3. In case Enalyzer has any reasonable suspicion of
abuse of the Products or of missing licenses, Enalyzer will inform
the Customer and make the necessary precautions.
4. Enalyzer's
obligations (hosted solutions)
4.1. The conditions of this section 4 - apply for Products
hosted by Enalyzer. If the Products are installed and hosted by a
third party or by a third party appointed by the Customer, Enalyzer
has no obligations regarding performance, security and maintenance
of the Products, unless otherwise appears from the offer to the
Customer.
4.2. Enalyzer's servers shall at all times be supervised
and maintained by a well-reputed hosting provider. The servers
processing the Products shall be locked into fireproof rooms.
Backup of al information of the Products information shall be made
on a daily basis.
4.3. In case the Customer loses data as a result of
own conditions, Enalyzer will, on the Customer's request, provide
the Customer with the information on the back-up, if available,
copy as soon as possible. This will be invoiced separately in
accordance with Enalyzer's regular rates.
4.4. Enalyzer shall store the Customer's data until
3 months after the expiry of the subscription period. During this
period of time, the Customer may obtain the data, cf. section 4.3.
Enalyzer will give the Customer a notice of 30 days prior to
deleting any of the Customer's data in order to avoid any unwanted
deletion of data.
4.5. In case of a system break-down, Enalyzer shall
reboot the Products as soon as possible. Enalyzer cannot be held
responsible for losses, which directly or indirectly may be
ascribed to a system break-down, unless it is due to defects or
negligence on Enalyzer's part.
4.7. Enalyzer acknowledges that the Customer's data
is collected on behalf of the Customer and that all rights to the
data belong to the Customer. However, Enalyzer reserves the right
to analyze the Customer's use of the Products with a view of
improving the Products.
4.8. Enalyzer has implemented appropriate security
measures for securing that the Customer's data which is processed
by Enalyzer's IT systems, is not destroyed, deteriorated, disclosed
to any unauthorized persons or abused in any other way. Enalyzer is
registered with the Data Protection Agency as an EDB service
bureau.
4.9. Enalyzer aims at managing the Products as secure and
stable as possible in accordance with good IT practice. However,
Enalyzer does not warrant, that the IT systems on which the
Products are based may not be hacked, although Enalyzer has to the
greatest extent possible designed the Products to resist hacker
attacks and other unauthorized access, that the Products at any
time or at a given time are available to the Customer or the
respondents, and that specific transactions at any time or at a
given time can be launched and/or completed on the Products.
4.10. Enalyzer may close the access to the Products
completely or partially for safety or operational reasons. Insofar
as it is possible, the Customer shall be given a notice prior to
closing access.
5. The Customer's
obligations
5.1. The Customer is obligated to use the Products in
accordance with Enalyzer's guidelines in force at any time
including these TOS. The Customer is not permitted to try to break
into the underlying database or other system resources. Likewise,
the Products shall not be used in any way which may harm Enalyzer
or a third party.
5.2. The Customer's use of the Products shall be
legal and in compliance with in particular the applicable laws on
good marketing practice and on processing of personal data. The
Customer has the full responsibility towards respondents and third
party for any requirements resulting from the Customer's use of the
Products.
6. Prices and
payment
6.1. Prices for the Products appear on the
website in force at any time.
6.2. All price information is stated in US$
without VAT and direct or indirect taxes, where appropriate.
Payment is in Danish Kroner (DKK) and updated monthly on the basis
of the closing exchange rate between US$ and DKK on the first
Danish banking day within each month.
6.3. Products are paid on a monthly basis in advance
for the forthcoming month (on the date of the initial opening of
the payable account). Advance payments are non refundable. There
will consequently be no refunds or credits for partial months of
service, upgrade/downgrade refunds, or refunds for months unused
with open accounts. In case of delayed payment, interests
accumulate according to the rate of the Danish Act on
Interests.
6.5. Prices of all products, including but not
limited to monthly fees for the Products, are subject to change
upon 30 days' notice from Enalyzer.
6.6. For any upgrade or downgrade in the Products, the
Customer's credit card will automatically be charged the new rate
on the next invoice. Downgrading your account may cause the loss of
content and features or capacity. Enalyzer does not assume any
liability for such loss.
6.7. Enalyzer provides an interface for the account
owner (as defined in the sign-up procedure) to change credit card
information e.g. upon card renewal.
6.8. Enalyzer does not store the Customer's detailed
credit card information. Such information is kept securely at our
hosting gateway, as required by law.
7. Intellectual property
rights
7.1. The Customer shall have all rights to its own
data, including data of the Customer's employees or customers
including related analyses.
7.2. Enalyzer shall have all rights to the Products
and the individual components, including name, logo, programming,
databases, catalogues, design, graphics and texts, unless the
material originally belonged to the Customer. This also applies to
all other material delivered to the Customer.
7.3. Without written accept from Enalyzer, the
Customer shall not use the Products or other material to which
Enalyzer holds the right. However, the Customer obtains complete
user right to graphic elements and text resulting from analyses
made on the Products made on behalf of the Customer.
7.4. The Customer's license to the Products and the user
right to other material are outlined in the offer.
7.5. The Customer's license to the Products and to
other material, to which the Customer obtains user right or
copyright, is conditional on the Customer's payment of the agreed
fee.
7.6. Each party is obligated to indemnify the other
party for losses resulting from third party's claims that
information, design, specifications, software, data or others
provided by the part in question violate third party rights.
8.
Damages
8.1. The parties are liable for damages in accordance with
the general rules of Danish law.
8.2. Enalyzer is, however, not responsible for
indirect loss, including loss at transactions and actions which are
not executed on the Products, for loss of data or any damage of the
Customer's computer or systems.
8.3. Enalyzer's total liability for damages is limited
to the amount the Customer has paid to Enalyzer 12 months before
the occurrence of the act or omission giving rise to the claim.
8.4. In no circumstances shall Enalyzer's aggregate
liability, whatever the terms of liability, exceed an amount
corresponding to the total of the aggregate consideration the
Customer has paid to Enalyzer in accordance with the agreement(s)to
which these TOS apply.
9. Force
majeure
9.1. The parties are in no circumstances responsible
for the fulfilment of agreements, to which these terms and
conditions apply if the failure to observe the agreement is due to
force majeure. The definitions of force majeure is conditions as
e.g. strike, lockout, riots, acts of war, epidemics, natural
disasters and fire, which are beyond the parties' control and which
the parties could not have foreseen, avoided or defeated at the
time of entering into the Agreement.
10.
Confidentiality
10.1. Each party is obligated towards the other
party to keep knowhow, trade secrets, personal and customer
information or other confidential information confidential.
10.2. The obligation to confidentiality does not
include information which at the time of disclosure was available
to the public or if the other party can establish that the party
receiving the information in question, at the time of the
disclosure already knew the content of the information, or if the
information at the time in question was obtainable for the
recipient in any other legal way.
10.3. As a listed company, Enalyzer reserves the
right to publish the conditions of the agreement(s) to which these
TOS apply resulting from the duty of disclosure in force at any
time to OMX, including First North.
10.4. Enalyzer may include the Customer on reference
lists and other marketing material without prior accept.
10.5. Each party is obligated to instruct employees
and subcontractors on a corresponding confidentiality
obligation.
10.6. Enalyzer's handling of information on the
Customer's employees, customers or any other of the Customer's data
shall proceed on behalf of the Customer in accordance with the
Customer's instructions.
11. Cancellation and
Termination
11.1. The Customer may cancel the account at any
time and is solely responsible for proper cancelation within the
interface related hereto within the Product.
11.2. If the Customer cancels its account for the
Products before the end of a current paid up month, the
cancellation will take effect immediately and the Customer will not
be charged again.
11.3. All credit card information will be deleted
from the payment gateway upon cancellation.
11.4. Agreements, to which these TOS apply, may be
terminated immediately in case of a material breach by the other
party, which has not been remedied before the end of a written
notice of 30 days from the breaching party. It is e.g. considered
material breach if:
a) The Customer uses the Products in an unauthorized way
b) The Customer wrongfully copies trademarks, software or other
belonging to Enalyzer
c) The Customer disregards the obligations stipulated in section
5 or other parts of these TOS
11.5. In case of termination due to the Customer's
material breach, there shall be no reimbursement of any amounts
paid in advance. In case of termination due to Enalyzer's material
breach or if the underlying agreement is terminated by Enalyzer,
there shall be a proportional refund of any amounts paid in
advance. In addition to this, the Customer is not entitled to
receive any reimbursement in connection with a termination.
11.6. If the Customer wants to file a complaint
against a defect in the Products, it shall be filed without undue
delay.
11.7. Enalyzer shall not be held liable for defects
of the Products and consultancy services, to which the Customer has
not complained within 6 months after the delivery of the Product or
the consultancy services to the Customer.
12.
Assignment
12.1. This TOS and the rights and licenses it grants or
receives may be transferred by Enalyzer without restrictions.
13. Jurisdiction and
applicable law
13.1. Any litigation concerning these TOS or any
underlying agreements between Enalyzer and the Customer, shall be
brought before the Copenhagen City Court as first instance
venue.
Danish material legislation applies.
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