General Terms
1 Use
1.1 These General Terms and Conditions apply to all deliveries from Justface ApS, CVR no 41878584, Odinsvej 23, DK-8722 Hedensted, Denmark (the “Supplier”) relating to the Software.
1.2 The Customer’s general terms and conditions do not apply. Any special terms agreed between the Parties will be stated on the Order Confirmation.
1.3 These General Terms and Conditions form part of the Licensing and Service Agreement (the “Agreement”) entered into between the Parties. The definitions given in the Agreement are applied throughout these General Terms and Conditions. Other defined terms will be indicated with an initial capital letter.
2 The Software
2.1 The “Software” means the software, data structure, system processes, smartphone application and other IT solutions used to support the Customer’s “Justface” online facial recognition software.
2.2 The Software will be supplied to the Customer in the standard version in place at any given time. The Software will only contain customer-specific modifications where this has been expressly agreed with the Customer.
2.3 The Software has been reviewed by the Customer on the Delivery Date (see section 5 of these General Terms and Conditions). The functions and limitations of the Software are therefore known to the Customer. The Start-Up Specification prepared by the Parties in connection with Delivery has been drawn up in collaboration with the Customer, and described the Customer’s additional requests for the Software at the start of the Agreement. The Parties approve the Start-up Specification at the Delivery Date; cf. section 5.4 of these General Terms and Conditions.
2.4 The Customer shall use the Software in accordance with the current user guide to the Software and this Agreement.
3 Operation and maintenance of the Software
3.1 The Supplier will supply the Software to the Customer as “Software as a Service” (“SaaS”) via a server hosted by a third party; cf. 13. The Supplier may change its hosting provider at any time and without giving any reason. The Customer shall provide the necessary hardware for the Software.
3.2 The Supplier shall be responsible, to the extent described in this Agreement, for (system) operation, monitoring, troubleshooting, maintenance, continuous updating and upgrading of the Software.
3.3 The Supplier shall only be responsible for operational faults due to errors in the Software itself, as delivered by the Supplier to the Customer. The Supplier is not responsible for operational issues due to breakdowns, faults or reduced performance in the Customer’s IT systems or IT equipment.
4 Installation of IT equipment
4.1 The Customer can choose to have IT equipment installed (camera, SD card, bracket, etc.) to go with the Software. Installation will be carried out by a professional technician with whom the Supplier has an arrangement.
4.2 The IT equipment will be installed on the Customer’s premises at a time to be agreed between the Customer and the installer. Payment for installation must be agreed directly between the Customer and the installer.
5 Delivery
5.1 The Supplier will assist the Customer in implementing the Software on the Customer’s premises; cf. section 4.
5.2 Before the Software is put into operation at the Customer, the Supplier will review the Software with the Customer to identify any errors and defects in the Software. The Parties will agree on a time for this review (“Handover”).
5.3 The Supplier will make a note of any errors and defects identified at the Handover and send this to the Customer for written approval (the “Start-Up Specification”).
5.4 Once both Parties have approved the Start-Up Specification, the Software will be deemed to have been delivered to the Customer (the “Delivery Date”). After this, any subsequent modification or addition to the Software which is not mentioned in the Start-Up Specification, and which is not part of the Supplier’s general maintenance and upgrading of the Software, will be covered by section 7 of these General Terms and Conditions on “Change Management”.
6 Error reporting
6.1 If the Customer finds or has reason to suspect that there is an error in the Software, the Customer must report this to the Supplier’s Help Desk without undue delay. Errors in the Software should be reported to: support@justface.dk. When reporting, the Customer must follow the formats, instructions and guidelines for error reporting determined by the Supplier at any given time.
6.2 Unless expressly agreed otherwise between the Parties, the Supplier will endeavour to rectify critical errors, including errors that result in the Software being unavailable or available to a substantially reduced extent, without undue delay. Non-critical errors must be corrected within a reasonable time after they have been identified, and no later than the next scheduled update to the Software.
6.3 If the Customer reports an error in the Software to the Supplier, and it is subsequently demonstrated that the error is not due to faults in the Software itself but is caused by e.g. incorrect use by the Customer, communication faults or the like which are beyond the Supplier’s control, the costs of rectification will be borne by the Customer, and the Supplier will then be entitled to payment according to the time actually spent, at the Supplier’s current hourly rates.
6.4 If the Customer causes faults in the Software, the Supplier shall be entitled to payment for assistance in repairing these in accordance with point 6.3 above.
6.5 If errors are found in third-party software, the Supplier shall only be obliged to inform the manufacturer of the error, with a request to rectify the defective software within a reasonable time. In the case of critical errors or errors that significantly reduce the usefulness of the Software to the Customer, the Supplier must make reasonable efforts to develop a temporary workaround.
6.6 Other breaches are covered by section 18 of these General Terms and Conditions.
7 Change management
7.1 If the Customer wishes the Supplier to make changes to the Software that are specific to the Customer, the Customer must submit a written change request to the Supplier. The Customer’s change request must contain at least the following information:
A A description of the desired change;
B Details of any critical deadlines for project start-up, commissioning, etc.
7.2 The Customer’s change request must be sufficiently detailed for the Supplier to prepare an estimate for the Customer of the payment required to document a proposed solution that meets the requirements in the Customer’s change request.
7.3 The Supplier will decide whether the desired change to the Software can be made, and if so, the Supplier will then prepare an estimate of the amount it will charge for implementing the Customer’s change request for change. This estimate will be sent to the Customer for approval.
7.4 Unless agreed otherwise in writing between the Parties, changes made to the Software will be deemed to be finally approved and accepted by the Customer on the date on which the Customer deploys the changes, in full or in part, but always within 30 days after the date when actual delivery took place.
8 The Customer’s administration of the Software
8.1 The Customer shall appoint an administrator to handle the Customer’s administration of the Software.
8.2 The administrator appointed by the Customer will receive training in the Software when it is implemented. This training will consist of one online training session per installation address, which will be included in the Start-Up Charge; cf. section 4.1A of the Agreement. Further training can be agreed with the Supplier and will be invoiced as “Other services”; cf. section 4.1C of the Agreement.
8.3 The Customer bears the full responsibility for ensuring that the Software is used in accordance with applicable legislation, including provision of the necessary processing environment and compliance with its obligations under the General Data Protection Regulation; cf. section 11 of these General Terms and Conditions.
8.4 The Customer bears the full responsibility and the full risk for ensuring that the Customer’s internal user administration is organised appropriately and in such a way that user-names and passwords cannot be misused to provide unauthorised access to the Software.
8.5 If an authorised user uses the Software in breach of the Agreement, the Supplier is entitled to exclude that user from the Software if the user does not immediately comply with the Supplier’s instructions.
9 Remuneration
9.1 The agreed remuneration will be stated on the Order Confirmation to be sent to the Customer after the Customer orders the Software from the Supplier. The Supplier’s current prices are set out in Annex 2 to the Agreement.
9.2 The Start-Up Charge, cf. section 4.1A of the Agreement, is a one-off fee covering the establishment, adaptation, configuration, testing and commissioning of the Software at the start of the Agreement.
9.3 As a fee for the right to access and use the Software and as remuneration to the Supplier for ongoing system operation, monitoring and basic technical support, maintenance and troubleshooting of the Software, the Customer will pay a monthly License and Service Fee, cf. section 4.1B of the Agreement. The License and Service Fee will be invoiced to the Customer monthly in advance, starting on the Delivery Date, regardless of whether this is before or after the effective date of the Agreement.
9.4 Other services, cf. section 4.1C of the Agreement, will be payable on the basis of time spent at the Supplier’s current hourly rates, as shown in the price list in effect at any given time (the price list in effect at the date of entry into the Agreement is attached as Annex 2).
9.5 The Start-Up Charge, cf. section 4.1A of the Agreement, and the monthly License and Service Fee, cf. 4.1B of the Agreement, will be invoiced monthly in advance. Remuneration for other services, cf. section 4.1C of the Agreement, will be invoiced to the Customer monthly in arrears.
9.6 All amounts stated in the Agreement, including the Annexes to it, are quoted excl. VAT.
9.7 It is a condition for the Supplier’s provision of the agreed services that the Customer should register for payment via the “Nets” supplier payment service (payment service for traders). The Customer therefore accepts, on entry into the Agreement, that it must register for payment via Nets.
9.8 If an invoice remains unpaid for more than 14 days after the due date, default interest will be charged on the invoice amount in accordance with the provisions of the Danish Interest Act. The Supplier is also entitled to charge a fee of DKK 100 plus VAT per reminder.
9.9 The License and Service Fee, and the hourly rate for other services, will be indexed (price-adjusted) once a year, starting 12 months after the entry into force of the Agreement. The adjustment will be governed by the change in Statistics Denmark’s “Net Price Index”.
9.10 Expenses for transport, meals and accommodation incurred by the Supplier by agreement with the Customer will be reimbursed by the Customer against proper documentation of the costs or expenses incurred by the Supplier. Expenses for transport will be calculated and reimbursed at the rates set by the State. Expenses must be approved in advance by the Customer, unless it is obliged to pay these costs to comply with the Agreement and the Supplier is unable to obtain the Customer’s approval prior to the outlay. In that case, the Supplier will notify the Customer of the expenses incurred without undue delay.
10 Warranties
10.1 The Supplier warrants to the Customer that the Software will operate in all essentials in accordance with the specifications provided and the functionality described. However, the Supplier does not guarantee that the Software will function without faults or interruptions of any kind, or that the Software will be otherwise error-free.
10.2 The Supplier warrants to the Customer that the Supplier is in possession of all permits, licenses, approvals, etc. which are necessary for the Supplier to lawfully deliver the Software to the Customer in accordance with this Agreement.
10.3 The Customer warrants to the Supplier that the Customer will not use the Software for the collection, recording, storage, processing or manipulation of data in breach of the law in force at any given time. The Customer warrants that is will comply with the regulations and license terms applicable to the Software at all times, including the license terms in this Agreement.
11 Personal data
11.1 In relation to all personal data entered into, transferred to and stored in the Software, the Customer is considered to be the data controller, while the Supplier is considered to be the data processor.
11.2 Personal data received will be processed exclusively on behalf of the Customer and in all respects in accordance with the instructions issued by the Customer at any given time. However, the Supplier may extract and store the Customer’s data in anonymised form for use in statistical analyses as part of the general continuous improvement and development of the Software.
11.3 To further regulate the Parties’ respective obligations in relation to the processing of personal data under the Agreement, the Parties have entered into the Data Processing Agreement attached in Annex 4. The Data Processing Agreement will take precedence over the Agreement if, and only to the extent that, there is a discrepancy between the Agreement and the provisions of the Data Processing Agreement.
11.4 The Customer is responsible at all times for the Customer’s processing of personal data in accordance with the applicable data protection legislation, including the General Data Protection Regulation (“GDPR”) and the Danish Data Protection Act. It is therefore the Customer’s own responsibility to ensure that the Customer has the necessary processing environment to process personal data in connection with the Customer’s use of the Software. It is also the Customer’s own responsibility to meet the disclosure obligations etc. that apply to the Customer’s use of the Software.
12 Intellectual property rights
12.1 The Customer will acquire only a non-exclusive, non-transferable and licensed right of use to use the Software as agreed.
12.2 The Supplier holds and will retain all existing rights to the Software, including copyrights, know-how, digital tools, source code, methods, ideas, business characteristics and other trade secrets; cf. Danish Trade Secrets Act.
12.3 The Customer may not copy the Software or its components or documentation other than as necessary for the Customer to use the Software as agreed. Nor may the Customer attempt to access the Software’s source code using reverse engineering, decompiling or otherwise. The Customer may not create testing environments for the Software without the Supplier’s prior approval, as this will be regarded as copying the Software in breach of the Agreement.
12.4 The Supplier will automatically and continuously acquire – subject only to any third-party rights – full, undivided and unrestricted ownership and/or usage rights to all parts of the Software that the Supplier develops, or has a subcontractor develop, including parts of the Software developed specifically for use by the Customer, unless the Parties expressly agree otherwise.
13 Third-party rights
13.1 The Software is a cloud-based IT solution hosted on Amazon’s Web Server (AWS). Data will be hosted on servers within the EU; however, data will be held in the United States for Customers established in the USA.
13.2 The Supplier warrants that the Software does not infringe the rights of others, cf. also section 10 of these General Terms and Conditions. However, this will not apply if the Customer uses the Software, or sub-elements thereof, in other ways or to a greater extent than agreed or if the Customer further develops the Software in breach of the Agreement. The Supplier accepts no liability for infringement of the rights of others which is caused by the Customer’s further development, expansion or modification of the Software in breach of the Agreement.
13.3 The Supplier’s warranty is conditional on the Customer immediately notifying the Supplier in writing if the Customer becomes aware of any infringements of rights that the Software might cause or has caused. The Supplier has the right to safeguard its interests in a possible legal action if the Software is alleged to infringe the rights of others. The Customer must assist the Supplier during this action in good faith and to the extent necessary.
13.4 If it has been determined by a final judgment or settlement entered into by the Supplier that the Software infringes the rights of third parties, the Supplier may choose to bring the infringements to an end by either
A providing the Customer with the necessary licenses to use the infringing parts of the Software, or
B modifying or replacing the infringing parts of the Software with a different or modified solution which has substantially the same functionality as the infringing parts of the Software, or
C if the remedial measures specified under (A) or (B) are not practicable or disproportionately costly for the Supplier, reducing the scope of the Software by removing the infringing parts and refunding a proportionate share of the License and Service Fee to the Customer.
13.5 In determining the refund amount according to section 13.4 (C) the usefulness to the Customer of the remaining part of the Software shall be taken into account.
13.6 The Customer may not raise any further claims or invoke other remedies against the Supplier as a result of infringement of third-party rights beyond those set out in section 13.4. The limitations on the Supplier’s liability that follow from the Agreement, including section 19 of these General Terms and Conditions, shall apply equally to infringements of third-party rights for which the Supplier is responsible.
14 Confidentiality
14.1 The Parties undertake not to disclose to third parties any Confidential Information (as defined below) that one Party receives from the other Party in connection with the Agreement.
14.2 The Parties further undertake to ensure that the Parties’ subcontractors, employees, etc. do not pass on Confidential Information to third parties.
14.3 “Confidential Information” shall be understood to mean information received by one Party from the other Party – whether such information is transmitted in writing, electronically, orally or otherwise, and whether the information is received before or after entry into the present Agreement and wherever it is received from – which is covered by the definition of “trade secrets” in Act no 309 of 25/04/2018 on trade secrets or any regulation replacing it at any given time, as well as information covered by the concept of trade secrets and/or business secrets deriving from case-law or a Party’s specific circumstances, in particular, but not necessarily, when the Party has marked information provided to the other Party as “confidential” or identified it as such in other ways.
14.4 The Supplier may pass on Confidential Information to its subcontractors to the extent that this disclosure is necessary for the subcontractor to assist the Supplier with delivery in accordance with the Agreement. The Supplier shall impose on its subcontractors a corresponding confidentiality obligation to that which the Supplier is subject to under the Agreement.
14.5 The Customer may pass on Confidential Information to consultants, other suppliers and others assisting the Customer, in exchange for imposing the same confidentiality obligation to which the Customer is subject under the Agreement. This also applies to the Customer’s discussions with potential new suppliers in connection with termination of the Agreement.
14.6 The Parties may disclose Confidential Information to the extent required by law, judgment or order from public authorities or administrative boards.
14.7 The confidentiality obligation also applies after the termination of the Agreement, regardless of the reason for the termination.
15 Use of subcontractors
15.1 The Supplier may, without the Customer’s prior approval, hire subcontractors to assist the Supplier with system operation, hosting, monitoring, troubleshooting, maintenance, continuous updating, backup and upgrade of the Software.
15.2 The Supplier’s use of subcontractors for data processing is, however, covered by the Data Processing Agreement attached as Annex 4.
16 Entry into force, termination and expiry
16.1 The Agreement shall enter into force on the effective date of the Agreement.
16.2 The notice period for either Party to terminate the Agreement is current month + 1 month, to the end of a calendar month.
16.3 With effect from the date of termination, the Customer’s right to use the Software will lapse. The Customer may, however, retain backups of data related to the Software to the extent and for the period for which the Customer is obliged to do so by law.
16.4 Upon termination of the Agreement, each Party – at the request of the other Party – must hand over all material which belongs to the other Party and which is in the possession of the first Party.
17 Force majeure
17.1 Neither Party will be liable for any delay or error or defect due to circumstances beyond that Party’s reasonable control (force majeure), including cases of mobilisation, war, natural disasters, epidemics and pandemics, strikes/lockouts, closures due to public prohibitions or injunctions, restrictions on the use of electricity and/or communication links, including power outages and breakdowns of communication lines, which the Party should not reasonably have anticipated, avoided or overcome.
17.2 In the event of force majeure, the obligations of the Parties shall be suspended for as long as the situation may reasonably be deemed to last.
18 Breach, complaint and compensation
18.1 The Customer’s reporting of errors in the Software is regulated by section 6 of these General Terms and Conditions.
18.2 If either Party otherwise breaches its obligations under the Agreement, the other Party may order the defaulting Party to bring the breach to an end within a period of eight (8) working days from receipt of the demand.
18.3 If the breach is due to circumstances that cannot reasonably be remedied within the specified time limit of eight (8) working days, it is sufficient for the defaulting Party to initiate relevant measures before the time limit expires, and then continue to pursue these in the best possible way, to bring the breach to an end. If the defaulting Party fails to comply with a demand as stated above and there is a material breach, the other Party may terminate the Agreement without further notice, provided that the demand contained a clear indication that the matter was considered to be a material breach. Among other things, the Customer will be considered to be in material breach if it falls more than 14 days behind with its payments.
18.4 If either Party initiates voluntary composition negotiations or compulsory arrangement, or requests reconstruction or is declared bankrupt, the Agreement may be terminated immediately and without prior notice by the other Party, notwithstanding these provisions; in the event of bankruptcy, however, only if the estate has failed to accede to the Agreement within a period of 8 days after a written demand to this effect.
18.5 In the event of breach, the Parties may claim compensation on the basis of the general rules of compensation in Danish law; but see section 19 below.
19 The Supplier’s limitation of liability
19.1 Notwithstanding the other provisions of the Agreement, the Supplier’s obligation to provide compensation in the form of payment and/or a proportionate reduction in the License and Service Fee or other remuneration shall be subject to the following restrictions:
A The Supplier is in no way responsible for the Customer’s use of the Software, including calculations, data compilations and results generated directly or indirectly by the Software on the basis of data entered into the software by the Customer or generated by the Software itself from the Customer’s data input.
B Under no circumstances will the Supplier be liable for operational failures due to breakdowns, faults or reduced performance in the Customer’s server or hardware, cf. also section 2.2.2; the same will apply to operational faults caused by third-party software or hardware used by the Customer or the Customer’s subcontractors, which are not due to the Supplier’s use of the third-party software or hardware in question.
C Under no circumstances will the Supplier be obliged to compensate the Customer for indirect or consequential losses, including, but not limited to, loss of expected or future earnings, losses due to purchases made or time spent by the Customer, regardless of whether the time spent internally is due to the breach by the Supplier.
D The Supplier will only assume product liability in accordance with the legislation, including the Danish Product Liability Act (Consolidated Act no 261 of 20/03/2007, as amended). Product liability for property damage is limited in accordance with point E below.
E The maximum compensation that the Supplier could be required to pay to the Customer under the Agreement may not exceed an amount equivalent to a six-month subscription and a maximum of 50.000DKK.
19.2 Any exception to the agreed limits on liability must follow the general rules of Danish law.
20 Assignment
20.1 The Supplier may assign its rights and obligations under the Agreement to third parties without the Customer’s prior consent.
20.2 The Customer may not assign its rights and obligations under the Agreement to third parties without the Supplier’s prior consent, unless this forms part of a general transfer of shares or units to a third party, whereby that third party will immediately assume the Customer’s rights and obligations towards the Supplier.
21 Choice of law and venue
21.1 The Agreement and these General Terms and Conditions are subject to Danish law.
21.2 As far as possible, any dispute concerning the application or interpretation of the Agreement shall be resolved amicably by the Parties by negotiation. Disputes that cannot be amicably resolved by the Parties must be brought before the ordinary courts with the Court in Horsens as the agreed venue of first instance, with the possibility of referral and appeal in accordance with the rules in the Code of Judicial Procedure.
22 Changes to the General Terms and Conditions
22.1 The Supplier may change these General Terms and Conditions without individual notice to the Customer. It is therefore the Customer’s own responsibility to keep up to date with the Supplier’s applicable General Terms and Conditions, which can be found on the Supplier’s website at www.justface.io
22.2 Material changes, including changes to prices or restrictions on the Supplier’s warranties, must however be notified to the Customer with at least 30 days’ prior notice. Indexation of prices, cf. section 9.9 of these General Terms and Conditions, is not regarded as a material change.
23 Other provisions
23.1 The Agreement and its Annexes, including these General Terms and Conditions, constitute the entire agreement between the Parties and supersede all prior oral and written agreements between the Parties relating to the content of the Agreement. The Annexes to the Agreement form an integral part of the contractual basis.
23.2 If one or more of the provisions of the Agreement are set aside or found invalid by the courts, the Parties agree that the other provisions of the Agreement will remain in force.