License Terms and Conditions for Verarca
In these license terms and conditions the following expressions have the following mean-ings:
1.1. “VEP” refers to VEP A/S or its affiliate, identified as the Licensee’s contracting party in the Agreement
1.2. “Licensee” refers to VEP’s customer/contracting party identified in the Agreement.
1.3. “Software” refers to the proprietary software application developed and owned by VEP that integrates with and extracts data from Licensee’s accounting software, calculates CO2-emissions of Licensee’s fixed assets within Scope 1, 2 and 3 based on the GHG-protocol and generates reports which can be used as part of Licensee’s ESG reporting.
1.4. “Documentation” refers to any descriptions or guidelines which Licensee receives or has access to relating to the use and/or the functionalities of the Software and/or the Services.
1.5. “Services” refers to the services provided by VEP, including access to and use of the Soft-ware.
1.6. “Cloud Provider” refers to the third-party public cloud provider hosting the Software from time to time, currently Digital Ocean LLC or its affiliates.
1.7. “License Terms” refers to these license terms and conditions.
1.8. “Agreement” refers to any document or other record of the Parties’ agreement on the commercial and other terms for VEP’s provision of Services to Licensee including these Li-cense Terms and any other terms agreed between the Parties.
1.9. “Licensee’s Data” refers to data made available by or on behalf of Licensee to VEP for the purpose of receiving the Services.
1.10. “Licensee’s Calculations” refers to the calculations and reports of the CO2-emissions relat-ed to Licensee’s fixed assets generated by the Software.
2.1. VEP agrees to provide Licensee with access to the Software via the internet as a hosted service on the infrastructure of the Cloud Provider. The Services include the integration of Customer’s accounting software with the Software, the extraction of the necessary data and the calculation of CO2 emissions based on the GHG Protocol standards and calculation tools.
3. LICENSE AND USE-RIGHTS
3.1. Subject to the terms, conditions and restrictions in these License Terms VEP grants to Licensee a non-exclusive, non-transferable, revocable license to access and use the Soft-ware for the term of the Agreement.
3.2. Licensee may only use the Software for its internal business purposes. In particular, Licen-see may not copy, adapt, reverse engineer, decompile, disassemble, modify or make deriv-ative works of or error corrections to the Software, or by any other means derive or gain access to the source code of the Software in whole or in part, nor attempt to do any such things, except only to the extent mandatory applicable law permits Licensee to do any of the aforementioned actions. Licensee and its end-users are explicitly prohibited from: (i) using the Software in any other form than object code; (ii) obtaining title to the Software or any intellectual property rights therein; (iii) removing or disabling security features of the Software; (iv) removing trademark or copyright notices from the Software; (v) publish-ing, disseminating, renting, leasing, or lending the Software; (vi) using the Software in violation of law; (vii) using the Software to develop a competing product or to benchmark VEP’s Services; or (ix) sub-licensing the Software. Any use of the Software outside the li-cense specifically granted by VEP according to these License Terms constitutes a violation of VEP’s intellectual property rights.
3.3. VEP may with immediate effect revoke Licensee’s license to the Software if Licensee breaches any restriction on the use of the Software set out in the preceding paragraph or otherwise infringes or violates VEP’s intellectual property rights or the Agreement in any material way.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Ownership of all intellectual property rights of any kind in any jurisdiction and all other rights, title and interest in and to the Software, the Documentation, any data bases and/or data compilations used by VEP in the provision of the Services and any modifications, im-provements and/or derivative works of any of the aforementioned (or any part thereof) will remain with VEP or its licensor. If VEP in providing the Services creates new software, Li-censee agrees that such new software shall be owned solely by VEP and Licensee hereby assigns and agrees to assign any and all rights it may hold to such software to VEP.
4.2. VEP reserves all rights in Software, Documentation any data bases and or data compila-tions not explicitly granted in these License Terms.
4.3. Licensee shall retain ownership of all rights in and to Licensee’s Data and Licensee’s Calcu-lations.
4.4. Notwithstanding clause 4.3 above, VEP shall be entitled to retain and use Licensee’s Data and Licensee’s Calculations after removing any identifiers which links the data to Licensee. The de-identified data may only be used for the purposes of benchmarking and training the AI embedded in the Software in order to continuously update and improve the performance of the Software.
5. ACCESS TO THE SOFTWARE
5.1. On the effective date agreed between VEP and Licensee, Licensee will receive the neces-sary information and instructions in order for Licensee to obtain access to the Software, provided that Licensee confirms its agreement to these License Terms and any other terms of the Agreement. Licensee must comply with the instructions received for access and use of the Software.
5.2. VEP is entitled to perform updates to the Software in its sole discretion. Other than as agreed in a separate written agreement, VEP shall not be obligated to provide maintenance or support of the Software to Licensee.
5.3. VEP may with immediate effect suspend user accounts for security reasons or if VEP dis-covers or reasonably suspects violation of these License Terms. VEP will inform Licensee of any suspension of Licensee’s user accounts as soon as practically possible.
6. PUBLIC CLOUD
6.1. Licensee acknowledges and agrees that access to the Software is provided from a public cloud hosted by the Cloud Provider pursuant to an agreement between VEP and the Cloud Provider which includes the Cloud Provider’s standard terms and conditions for the provi-sion of hosting services (“Cloud Terms”). As a condition for getting access to the Software, Licensee agrees that its use of the public cloud services in connection with the Services will comply with the terms and conditions set out in the Cloud Terms.
6.2. VEP undertakes to ensure that Licensee has easy access to the Cloud Terms at any time. The applicable version of the Cloud Terms (including Cloud Providers’s information security and privacy practices) is available via https://www.digitalocean.com/legal/terms-of-service-agreement If the Cloud Terms are changed in a way which materially impacts Licensee, VEP will as soon as reasonably possible inform Licensee thereof. Upon request VEP will to a rea-sonable extent provide advise about the consequences of Licensee’s use of the public cloud solution including in relation to information security and applicable service levels. If VEP is unable to provide advise about the public cloud solution, VEP will liaise with the Cloud Pro-vider and act as the point of contact on behalf of Licensee.
6.3. VEP’s obligations, responsibilities and liability towards Licensee relating to the public cloud services provided by Digital shall be determined on the basis of the Cloud Terms which shall apply on a “back-to-back”-basis as between VEP and Licensee. VEP’s liability towards Licensee cannot exceed Cloud Provider’s liability towards VEP.
6.4. VEP may upon reasonable written notice to Licensee exchange its then current Cloud Pro-vider with another reputable third-party hosting provider. Clause 6.1 – 6.3 shall apply ac-cordingly to the public cloud services provided by the new hosting provider.
7. DATA SECURITY AND PROCESSING OF PERSONAL DATA
7.1. VEP has established and will maintain, evaluate and update on an ongoing basis appropri-ate information security measures in order for VEP to meet the generally applied security standards and practices within VEP’s industry in Denmark.
7.2. Licensee agrees that to the extent VEP has complied with generally applied security stand-ards within VEP’s industry in Denmark, VEP shall not be liable for loss of or damage to Li-censee’s Data or other loss suffered by Licensee as a result a security breach in the Soft-ware or VEP’s systems including a virus or other malware attack.
7.3. Licensee acknowledges and agrees that Licensee is responsible for ensuring the security of its own IT-systems, devices and data connections used to access the Software.
7.4. The Parties agree that Licensee is the data controller in relation to personal data processed in connection with Licensee’s use of the Services and VEP is Licensee’s data processor.
7.5. The requirements applicable to VEP’s processing of personal data on behalf of Licensee in connection with the provision of the Services and the Parties’ respective rights and obliga-tions in relation thereto are set out in the Data Processing Agreement in Schedule 1 to these License Terms.
8. LICENSEE’S OBLIGATIONS
8.1. Licensee is responsible for its own internet connection and all associated costs. Licensee’s use of the Software requires internet access that may be used for transfer of data between Licensee and the data centre (e.g., Digital) used by VEP.
8.2. Licensee guarantees that it and all users who are granted access to Software by or on be-half of Licensee (“Authorised Users”) will comply with these License Terms including the restrictions on use of Software and that the information regarding Licensee and its Author-ised Users is correct and updated at all times and that only Authorised Users will have ac-cess to the Software. Licensee is responsible for informing the Authorized Users of this ob-ligation and assumes liability for its Authorized User’s non-compliance with these License Terms. Licensee is obligated to store and use login, passwords and any other security keys properly (including ensuring its Authorised Users do not share the foregoing). Licensee un-dertakes to notify VEP immediately upon becoming aware that the security in respect of access to the Software potentially has been compromised or if Licensee discovers defaults and defects of the Software.
8.3. Licensee represents and guarantees that it is entitled to and has all required licenses or permits from third parties to allow VEP to: (i) access its accounting software, (ii) extract and process Licensee’s data for the purpose of providing the Service.
9. VEP WARRANTY
9.1. Subject to events of Force Majeure, VEP warrants that during the term of VEP’s provision of the Services, the Software will perform in substantial conformance with the specifications in the applicable documentation when accessed from a system with the recommended specifications.
9.2. EXCEPT FOR THE LIMITED WARRANTY IN CLAUSE 9.1, VEP (ON BEHALF OF ITSELF AND ITS SUPPLIERS) HEREBY DISCLAIMS ALL (AND DOES NOT MAKE ANY) OTHER EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES OR GUARANTEES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. VEP WILL NOT GUARANTEE THAT SOFTWARE WILL OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. THE SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS “. VEP AND ITS SUPPLIERS SHALL NOT BE LIABLE TO ANY PARTY FOR ANY CLAIM OR DAMAGE INCURRED IN CONNECTION WITH THE USE OR INABILITY TO USE ANY LICENSED INTELLECTUAL PROPERTY.
9.3. The limited warranty above will not apply if: (i) the Software is not used in accordance with the written instructions and recommendations provided by VEP, including the docu-mentation; (ii) the Software or any part thereof has been modified without the prior writ-ten consent of VEP; (iii) the failure of the Software to function in accordance with the spec-ifications is caused by instabilities or other failures in the proper functioning of Licensee’s IT-environment or internet access outages, regardless of the cause; or (iv) a defect (or other breach of the warranty) is otherwise caused by events outside VEP’s immediate in-ternal control, which may include acts of God, civil disturbance, acts of war or terrorism, strikes, lockouts, actions or decrees of government bodies, supply outages or the failure of its sub-contractors to perform (“Force Majeure”).
10. VEP’S LIABILITY
10.1. VEP is not providing any advisory services concerning Licensee’s use of Software unless this is specifically agreed in a separate written agreement. Licensee’s use of Software and Services is at Licensee’s sole responsibility and risk. VEP shall not be liable for Licensee’s use of Software or the Services.
10.2. VEP shall not be liable for any damages arising out of this Agreement or relating to Licen-see’s use of Software or resulting from actions or omissions caused by VEP, other than to the extent expressly provided in this section 10, whether such damages arise from breach of contract, tort (including negligence) or otherwise.
10.3. Except for the limited warranty under section 9, VEP disclaims any liability with respect to Software and Services. If VEP breaches any warranty, Licensee’s only remedy and VEP’s only liability for such breach will be at the discretion of VEP, (i) the full or partial refund of the amounts paid for the Services in the period in which Software was defective, but no more than the license fee for six (6) months; or (ii) the correction of the defects in Soft-ware causing such breach.
10.4. VEP SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL PUNITIVE OR INDIRECT DAMAGES, INCLUDING LOSS OF POFIT, LOSS OF PRODUCTION, LOSS RE-LATED TO LICENSEE’S INABILITY TO USE SOFTWARE AS CONTEMPLATED, LOSS OF REPU-TATION, PENALTIES AND FINES, LOSS RELATED TO BREACH OR TERMINATION OF CON-TRACTS WITH THIRD PARTIES OR LOSS RELATED TO THE LOSS OR DISRUPTION OF DATA ARISING OUT OF OR RELATING TO THE AGREEMENT WHETHER OR NOT VEP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, UNLESS IT IS PROVED THAT VEP HAS ACTED INTENTIONALLY OR WITH GROSS NEGLIGENCE. VEP’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID TO VEP ACCORDING TO THE AGREEMENT CONCERNING THE SERVICES, DURING THE LAST SIX (6) MONTHS PRIOR TO THE INCIDENT GIVING RISE TO THE CLAIM.
10.5. Licensee will not be entitled to make claims for damages later than twelve (12) months after the incident giving rise to the claim.
10.6. VEP’s disclaimer and limitations of liability shall also apply to VEP’s employees, representa-tives, suppliers, sub-contractors, and physical and legal persons assisting in deliveries. Consequently, these persons cannot be held liable for Licensee’s damages or losses, if any, either.
11. CONFIDENTIAL INFORMATION
11.1. “Confidential Information” means all confidential information (however recorded or pre-served) disclosed by a Party or its Representatives (as defined below) (the “Disclosing Par-ty”) to the other Party and that Party’s Representatives (the “Receiving Party”) whether be-fore or after the date of the Agreement including:
(i) The terms of the Agreement.
(ii) Any information that would be regarded as confidential by a reasonable interpreta-tion of the information and the context in which it was shared relating to the busi-ness or operation of the Disclosing Party.
(iii) VEP’s Confidential Information include all non-public information about the Soft-ware, including the source code, the AI embedded in the Software, the Documen-tation and the knowhow related to the Software and the Services. Licensee’s Con-fidential Information include the Licensee’s Data and the Licensee’s Calculations, but excludes the de-identified information derived from Licensee’s Data and the Licensee’s Calculations pursuant to clause 4.4. above.
Confidential Information does not include information which the Receiving Party can demonstrate by written record: (a) is or subsequently becomes available to the public in any manner other than as a result of the Receiving Party’s actions or failure to take any ac-tion (including any breach of the Agreement); (b) was already in the Receiving Party’s possession at the time of the Disclosing Party’s disclosure to the Receiving Party; (c) has been independently developed by the Receiving Party or for the Receiving Party by its em-ployees or contractors who did not have access to the Confidential Information; or (d) is subsequently disclosed to the Receiving Party through a third party entitled to disclose such information without restriction on disclosure.
“Representatives” means, in relation to a Party, its employees, officers, contractors, sub-contractors, representatives and advisers.
11.2. The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and shall not
(i) use such Confidential Information except for the purpose of exercising or per-forming its rights and obligations under or in connection with the Agreement; or
(ii) disclose such Confidential Information in whole or in part to any third party, ex-cept as expressly permitted by this Clause 11.
11.3. The Receiving Party may only disclose Confidential Information to its Representatives who need to know such Confidential Information for the purposes of this Agreement provided that the Representatives are bound by obligations of confidentiality not less restrictive than those applicable to the Receiving Party under this Agreement. The Receiving Party shall be liable for its Representative’s failure to comply with the obligations of this section 11.
11.4. If the disclosure of Confidential Information is required (i) by a competent court or public authority; (ii) under mandatory statutory provisions; (iii) or in accordance with the rules for companies having shares listed for trading on a regulated market where the shares or other securities of the Receiving Party or its affiliates are listed, the foregoing provisions of this section 11 will not apply to such disclosure. Such disclosure shall, however, be subject to the Receiving Party’s prompt prior notification thereof to the Disclosing Party to enable the Disclosing Party to obtain an injunction or otherwise prevent such disclosure, and the Receiving Party will provide reasonable assistance in this connection; and the Receiving Party shall only disclose the minimum amount of Confidential Information required to be disclosed to comply with such requirement.
11.5. The Receiving Party’s obligations under the Agreement also apply to information disclosed by or on behalf of the Disclosing Party before the Effective Date, provided that such infor-mation was disclosed to the Receiving Party in connection with the Agreement.
11.6. All Confidential Information, including any copies or other material prepared on the basis of the Confidential Information, shall remain the property of the Disclosing Party at all times. At the Disclosing Party’s request and in accordance with the Disclosing Party’s instructions, the Receiving Party must promptly either: (a) return to the Disclosing Party all copies and other material containing or prepared on the basis of the Confidential Information; or (b) destroy all copies and other material containing or prepared on the basis of the Confidential Information.
11.7. The obligations of this clause 11 shall continue in force after the termination or expiry of the Agreement.
12. OTHER PROVISIONS
12.1. VEP may, during regular business hours and upon reasonable advance notice of at least 5 business days, conduct an audit to determine Licensee’s compliance with the terms and conditions of the Agreement. Notice to conduct an audit shall be sent by ordinary mail to Licensee. Licensee will permit VEP or its authorised agents (who will undertake a duty of confidentiality not less restrictive than VEP’s) to access Licensee’s facilities and cooperate fully with VEP in any such investigation.
12.2. Licensee is not entitled to transfer rights or obligations under the Agreement without prior written approval from VEP.
12.3. No waiver by a Party of any provision of the Agreement shall be effective unless explicitly set forth in writing and signed by that Party. A Party’s delay or failure to exercise a right or remedy under the Agreement will not operate as a waiver of any other rights or remedies of that Party.
12.4. Provisions in the Agreement relating to obligations which have accrued or explicitly or by implication have application beyond the term of the Agreement and any provision required to interpret and enforce the Parties’ rights and obligations under the Agreement to the ex-tent required for the full observation and performance of the Agreement shall survive any termination or expiration of the Agreement (including with respect to ownership of intellec-tual property, disclaimers, limitations of liability, and confidentiality).
12.5. The relationship between the Parties shall at all times be that of independent contractors and nothing in the Agreement shall be construed as creating any agency, partnership, or other joint venture between the Parties. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
12.6. If a provision of the Agreement is declared invalid, illegal or unenforceable under applicable law, the Parties agree that the other provisions of the Agreement will remain effective. The Parties agree to attempt through good faith negotiations to replace the invalid, illegal or unenforceable provision with a new provision ensuring that the legal relationship between the Parties is maintained to the widest extent possible as assumed by the Parties when ex-ecuting the Agreement.
12.7. Neither Party will be liable for any delay in or failure to perform any of its non-monetary obligations under the Agreement, if such failure or delay is due to Force Majeure.
12.8. Expressions, such as “including” and similar expressions, mean “including, but not limited to”. Words in the singular include the plural and vice versa. The headings of the Agreement are for guidance only and have no separate legal effect on the understanding or interpreta-tion of the provisions of the Agreement. The Agreement may only be changed, modified or amended in writing and executed by both Parties.
13. GOVERNING LAW AND DISPUTES
13.1. The Agreement shall be governed by Danish law, without regard to any applicable conflict of laws principles to the extent that the application of the laws of another jurisdiction would be required thereby. Any dispute, action, proceeding or claim arising out of or in re-lation to the Agreement, including disputes related to the existence, breach, interpretation, enforcement, effect, termination or invalidity hereof, shall be referred exclusively to the ju-risdiction of the Citi Court of Kolding, Denmark, provided, however, that either Party may seek injunctive relief or other provisional remedies in any otherwise competent court, in-cluding under relevant foreign legislation. The Parties will continue the proceedings in ac-cordance with the above provision irrespective of whether any interim remedy has been implemented.
13.2. The Parties acknowledge and agree that, in the event of an actual, alleged or threatened breach of the Agreement, the Party not in breach is likely to suffer immediate and irrepara-ble harm and may not have an adequate remedy at law, including monetary damages, and that the Party not in breach shall consequently be entitled to seek a temporary restraining order, injunction or other form of equitable relief against the continuance or occurrence of such breach, in addition to any and all remedies to which the Party not in breach shall be entitled, without the posting of any bond or other security.
SCHEDULES: Schedule 1: Data Processing Agreement