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Capdesk - Customer Agreement
1. The Agreement and the Parties
This Capdesk Customer Agreement (the "Agreement") contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between Capdesk ApS, DK-2200 Copenhagen N., Denmark, registration number: 36893621, ("we" or "Capdesk") and you or the entity or company you represent ("the Customer" or "you"), collectively referred to as the Parties.
By entering into this Agreement, you confirm that you are lawfully able to enter into contracts in general (e.g., you are not a minor), and that you represent the Customer entity and are able to enter into contracts on behalf of the Customer.
This Agreement supersedes all prior or contemporaneous negotiations, agreements, understandings, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. By entering into this Agreement, you also agree to our Data Processor Agreement, between Capdesk and you as a Customer.
In the event of any discrepancies between this Agreement and any other agreement you may have with Capdesk, this Agreement shall prevail, unless the other agreement explicitly mentions that it supersedes this Customer Agreement.
This Agreement takes effect when you confirm your consent to this Agreement electronically by clicking an "Accept Customer Agreement" button or equivalent within the Application, or when the Agreement has been signed directly by both Parties. The date of the entering into this Agreement will be referred to as the Effective Date.
2. Changes to this Agreement
You agree that Capdesk may modify this Agreement at any time in its sole discretion. We will notify you directly in this case. Except where impossible, we will notify you at least 60 days ahead of any changes. Any changes will also be published online.
You may object to any substantial change to this Agreement by terminating the Agreement for cause immediately upon notice (pursuant to the termination conditions set out in section 10), on condition that you provide such notice within 90 days of being informed of the change to this Agreement (the "Change Assessment Period"). This termination right is your sole and exclusive remedy if you object to any change in the Agreement.
Your continued use of the Services (non-termination) after the expiry of the Change Assessment Period shall constitute your acceptance of this Agreement, as amended, and your continued use of the Services following any noticed modification of this Agreement shall constitute your acceptance to the Agreement, as amended.
The Services governed by this Agreement, referred to as the Services, are the use of the Website (collectively, the 'Information Providers'). (the Application) as well as any services (business, technical, or other), provided to you as a Customer by Capdesk, its sub-contractors, business partners, licensors, other affiliates, other Capdesk Customers or Users, and third-party providers
You may access and use the Services in accordance with this Agreement and all additional agreements you have with Capdesk, such as the Data Processor Agreement. You agree to complying with the terms of this Agreement and all other Capdesk agreements and all laws, rules and regulations applicable to your use of the Services.
4. Changes to the Services
Capdesk may exercise full discretion in modifying or discontinuing any part or whole of the Services subject to this Agreement at any time without cause or prior notice. We will notify you of any substantial change to or substantial discontinuation of, temporary or permanent, the Services, and 30 days ahead of adverse changes, including discontinuations, when at all possible. In case you want to continue using the Services after a substantial discontinuation or adverse change, the Parties may re-negotiate fees in good faith. Further conditions apply, cf. section 10.
Capdesk or the Information Providers own all right, title, and interest in and to the Services, and all related technology and intellectual property rights.
Capdesk grants you, subject to the terms of this Agreement, a revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services in accordance with this Agreement.
Except for this right, you obtain no rights under this Agreement from Capdesk, the Information Providers, or any Capdesk-related entity to the Services, including any related intellectual property rights; in particular, the Application software thus licensed to you under this Agreement is licensed, not sold, and Capdesk reserves all rights to said software.
Capdesk obtains no right under this Agreement from you regarding any information provided or content shared as part of your usage of the Services, including any related intellectual property rights.
Capdesk will use reasonable efforts and take commercially reasonable measures to ensure a satisfactory availability of the Services, including a reasonable Monthly Uptime Percentage of the Application, reasonably error-free Service experience, and timely responses to any support request or other type of request. We will also do our best to keep the Services correct, timely, accurate, reliable and complete.
We strive to have a Monthly Uptime Percentage for the Application above 99.5 %, but as all online services, we suffer occasional disruptions and outages, and we do need occasional service windows for database and application maintenance and upgrades. Service windows are usually scheduled outside UK and EU business hours.
7. Security and privacy
Your privacy matters to us. Capdesk therefore implements strict, reasonable and appropriate security measures, including encryption and regular backups, to secure Your Content, as disclosed to or kept by Capdesk, against accidental loss, theft, or unauthorized access or disclosure. These measures do not limit your obligations as outlined in section 9.
a) our Privacy Statement, as it describes the types of data we collect from you as a natural person, and your devices, how we use your data, and the legal basis for processing your personal data.
b) our Data Processor Agreement, as it outlines the details of our security measures, the geographical storage of Your Content, and more.
To provide support, onboarding, billing and other administration services, we may store some of your Customer data in locations where we maintain staff for support and administration services. This is detailed in our Privacy Statement and in the Data Processor Agreement.
8. Your account activity
You are responsible for your account activity, meaning all activities that occur while your user identification name (or "user name") and passwords are being used. This responsibility applies regardless of whether the activities are authorized by you or undertaken by you, your employees, employees of the Customer you represent, or a third party (including your contractors, agents or Customer End Users), and applies also to unauthorized access to the extent caused by your gross negligence. Capdesk is never responsible for unauthorized access to your account, although special conditions apply in case of a security breach (cf. our Data Processing Agreement).
You are responsible for protecting and securing your user name and password from unauthorized use and disclosure. If you become aware of, or believe there has been, any breach of security for any of your information stored on our website, such as the theft or unauthorized use of your user name, password, or any other information, you will notify Capdesk immediately. Your log-in information (for example, username and password combination) as well as any other security information generated by the Services (such as invitation tokens) are for your internal use only, and you will not disclose them to any unauthorized entity or person.
By using the Services, you agree that:
a) You shall not use the Services for any illegal or unauthorized purpose.
b) You will not engage in any activity that exploits, harms, or threatens to harm children.
c) You will not send spam using functions of the Application or by other means enabled by the Services. Spam is unwanted, unsolicited bulk emails or messages.
d) You acknowledge that the Application, as a part of delivering the Services to you, may send emails to third parties on your behalf, as triggered by your account activity. By consenting to this Agreement, you consent to such email sending on your behalf, as long as it is clear from the usage of the Services when and to what extent such emails will be sent, and as long as it can be avoided.
e) You will not use the Services to share inappropriate content or material (involving for example pornography, violence, or criminal activity).
f) You will ensure that any data or content you register, upload, share or make public via the Services ("Your Content") and your usage of Your Content or the Services will not violate any of the agreements you have entered into with Capdesk or any applicable law. You are solely responsible for the maintenance and use of Your Content in context of the Services.
g) You will not circumvent any access or availability restrictions on the Services,
h) By using the Services, you are further indicating that you are not located in a jurisdiction where use of the Services and the publication and sharing of the materials available on Capdesk is in any way illegal or restricted by law. If you are located in such a jurisdiction, Capdesk is not willing to provide you with access to the Services and you should immediately discontinue your use of the Services.
i) It is prohibited to use, store, reproduce, display, modify, sell, publish, transmit and distribute, or commercially exploit the Services without prior written permission of Capdesk and/or any third-party information provider(s);
j) Capdesk and/or any third-party information provider(s) reserve all rights to proprietary information (including, but not limited to, all intellectual property rights such as; patents, trademarks, service marks, copyrights, database rights, topography rights, industrial design, know-how, trade secrets, trade names, logos, designs, symbols, emblems, insignia, slogans, drawings, plans and other identifying materials, in all forms whether or not registered or capable of registration and any other rights relating to intellectual property in accordance with the applicable laws,) subsisting in or relating to the Services.
k) If you provide any input to Capdesk, in the form of suggestions, ideas, questions, remarks, support requests, or other, Capdesk shall be entitled to use this input without restriction and irrevocably be assigned all right, title, and interest in and to such input.
l) The use and interpretation of the Services requires skill and judgment, and you shall at all times exercise your own judgment in the use of the Services.
m) Capdesk has no responsibility for the accuracy, truth or completeness of information made available via Capdesk, but that is not provided by Capdesk, such as content provided by Capdesk Customers and Capdesk End Users.
n) The Services are intended for informational purposes only without regard to any particular entity's investment objectives, financial situation, or means, and Capdesk is not soliciting any action based upon it. This material is not to be construed as a recommendation; or an offer to buy or sell; or the solicitation of an offer to buy or sell any security, financial product, or instrument. Investments made in unlisted companies give rise to substantial risk and are not suitable for all investors, and you should not enter into any transactions unless you have fully understood all such risks and have independently determined that such transactions are appropriate for you. You should not construe any of the material contained herein as business, financial, investment, hedging, trading, legal, regulatory, tax, or accounting advice. Capdesk takes no responsibility for the actions or omissions, which you make on the basis of the information on Capdesk.
o) We encourage you to secure, protect and backup your account and Your Content, by for instance regularly archiving copies of Your Content outside Capdesk in a suitably secured location.
p) You will not knowingly or by your gross negligence help others break these rules.
q) Documents generated by the Capdesk Platform may be executed by electronic signatures using, for example DocuSign. By entering your electronic signature into a document on the Capdesk Platform, you consent to the use of your e-signature to create a legally binding document.
r) Customers (and users) generating documents using the Capdesk Platform are responsible for the content of these documents. Furthermore, if customers (and users) choose to get the documents signed electronically using the Capdesk Platform, they are responsible for the process.
This Agreement will commence on the Effective Date and will remain in effect until terminated pursuant to the clauses in this section.
To terminate the Agreement, the terminating party must notice the other Party of the desired Termination Date according to the conditions for giving notice outlined in section 16.
a) Either party may terminate this Agreement for any reason with at least 30 days advance notice.
b) You may also terminate your agreement with immediate effect in case the reason for the termination is your express disagreement to our material alteration of terms or conditions in this Agreement (including sub-Agreements, such as the Data Processor Agreement) and termination notice is given within 90 business days (the "Change Assessment Period") of our publication of said alteration.
c) Capdesk may also, at its sole discretion and at any time, suspend or discontinue your use of the Services without prior notice, and without any liabilities of any kind, in case Capdesk suspects or determines that your use of the Services in any way materially violates this Agreement, is fraudulent, or if needed to comply with the law or requests from public authorities. Capdesk may, at its sole discretion and at any time, and without any liabilities of any kind, suspend or discontinue your use of the Services with 10 days' prior notice, in case Capdesk suspects or determines that your use of the Services poses a security risk, could impact the operations of our systems or delivery of the Services, could subject Capdesk or a third party to a substantial liability, or if you become the subject of bankruptcy, dissolution, liquidation, or similar; in such cases, Capdesk shall provide a reasonably detailed motivation for the suspension or discontinuation. In case of suspension, you remain liable for all fees and charges incurred during the suspension period.
d) Capdesk may also have to terminate or alter this Agreement without notice in case a third-party subcontractor, partner or vendor substantially breaches (or unrightfully terminates) an agreement with Capdesk without notice, Capdesk could not reasonably foresee and prevent such breach or termination, and this breach requires us to substantially alter or terminate the way we provide the Services to you; in this case, we will do whatever is possible to assist you with any transitional needs and inform you ahead of any changes taking place.
Upon the Termination Date, all your rights and obligations under this Agreement immediately terminate. You remain responsible for all fees and charges you have incurred until the Termination Date, and unless you terminate this Agreement without cause (pursuant to above clause a)), Capdesk will reimburse you for any fees prepaid for any period following the Termination Date and on a pro-rata basis form the Termination Date for any fees covering a period including the Termination Date; if you terminate the Agreement without cause, the Parties agree to negotiate in good faith a full or partial reimbursement of any prepaid fees. Unless we suspend or terminate your account pursuant to the clauses c) or d), in the 90 days following the Termination Date, we will not take action to remove, block, anonymize, reduce availability of, or in any way alter any of Your Content. If you use the Services after the Termination Date, the terms of this Agreement will still apply in that period, and you will pay the applicable fees and charges for the usage of the Services in this period.
Your data is yours, and as long as your account is accessible (not suspended or terminated), you will be able to export your data from the Application. In case of a partial service discontinuation blocking this function, or in case your account is inaccessible, you can request us to assist with delivering an export of your data, which we will complete within 30 days after being given notice, unless circumstances outside Capdesk's control make such an export impossible. If your account is suspended or terminated due to condition c) above, we will be entitled to a payment for any data export assistance, at an hourly rate of £100-200 ex. VAT (depending on the nature of the assistance), and capped at a maximum fee of £2,500 ex. VAT for such assistance.
We calculate and bill fees and charges regularly, and billing frequencies and timings may vary across Customers. We will send invoices and billing-related communication to your Customer Contact Email address; we may bill you directly using other payment information if you have provided such. By entering into this Agreement, you represent that any payment information you provide is true and accurate, and further that when you purchase the Services or part thereof on a subscription basis (e.g. monthly or yearly), you authorize Capdesk to, upon 30 days' prior notice, automatically renew that subscription and the end of the Service period paid for, to charge recurring subscription fees and to store and reuse your payment information for such recurring billing. Capdesk's failure to provide notice of such automatic renewal will allow you to void (and, if applicable, receive reimbursement for) any subscription fees for renewal.
Payment of any due amounts payable by you under this Agreement or another agreement with Capdesk will be paid to Capdesk without set-off or counterclaim, and without any deduction or withholding, and according to the payment methods and conditions specified on each invoice. Payments more than 30 days late are subject to an interest of up to 2.5 % per month (or the highest rate permitted by law, if less). After notice of non-payment and 30 days to cure, non-payment can result in our suspension or termination of this Agreement and your loss of access to and use of your Customer account and Your Content.
Unless otherwise provided by law or a specific other agreement with Capdesk, all purchases are final and non-refundable, subject to Section 10. If you believe that we have charged you in error, you must contact us within 30 days of such charge pursuant to the conditions for giving notice in section 16. No refunds will be given for any charges more than 60 days old. Except where required herein, we reserve the right to issue refunds at our sole discretion. If we issue a refund, we are under no obligation to issue the same or similar refund in the future.
We may update fees and charges for parts or all of the Services, or new Services, or if parts of Services are discontinued. Such updates will be effective when we publish information on the updated fees and charges on the Capdesk web site or at another time, if we inform you so in writing. If we increase or add fees or charges, we will notify you at least 45 days in advance of these changes take effect.
12. Limitation of liabilities and indemnification
The Parties are liable according to the general rules of applicable law, subject, however, to the limitations set out in this section.
The Parties disclaim any liability for indirect, incidental, special, consequential or exemplary losses, including loss of profits, goodwill, opportunities, customers, savings and revenue, including expenses to recover lost revenue, interest loss and loss of data.
The Parties' maximal liability for all cumulative claims under this Agreement is limited to the total due payments for the Services for the 12-month period immediately preceding the wrongful act or incident. If this Agreement has not been in force for 12 months, the amount is calculated as the agreed payment for the Services for the period during which this Agreement has been in force divided by the number of months for which the Agreement has been in force and then multiplied by 12. In case of a Party’s breach of its data protection obligations pursuant to the Data Processor Agreement, gross negligence, willful misconduct, or material non-conformity leading to substantial, documented damages for the other Parties, that Party’s maximal liability is instead £200,000 or to the total due payments for the Services for the 12-month period immediately preceding the wrongful act or incident, whichever is greater. Nothing in this Agreement shall be construed so as to limit or exclude any liability which cannot be legally limited, including but not limited to liability for: (i) death or personal injury caused by a Party’s negligence; or (ii) fraud or fraudulent misrepresentation by a Party.
You will defend and hold harmless Capdesk, its subcontractors, partners, affiliates, and their respective employees against any third-party claim alleging that any of Your Content infringes that third party's intellectual property rights, and you will pay the amount of any adverse final judgment or settlement.
13. WARRANTIES AND Disclaimers
CAPDESK WARRANTS AND REPRESENTS THAT (I) YOUR USE OF THE SERVICES ACCORDING TO SECTION 9 WILL NOT INFRINGE UPON ANY THIRD PARTY RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OR VIOLATE ANY APPLICABLE LAWS; (II) IT WILL MAINTAIN APPROPRIATE TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES IN RENDERING THE SERVICES SO AS TO PROTECT YOUR INFORMATION CONTAINED IN THE SERVICES FROM UNAUTHORIZED ACCESS AND USE; AND (III) IT WILL DELIVER THE SERVICES IN A PROFESSIONAL WORKMANLIKE MANNER IN ACCORDANCE WITH INDUSTRY STANDARD.
Except as expressly set forth herein, Capdesk makes no warranties of any kind, express or implied, guarantees or conditions with respect to your use of the Services, including without limitation any warranty of merchantability, fitness for a particular purpose, title, satisfactory quality, quiet enjoyment or non-infringement.
The Services are provided 'as is', 'with all faults' and 'as available', and without responsibility for accuracy, timeliness, correctness, reliability and completeness. Capdesk does not warrant that the availability, use or function of the Services or third-party content will be uninterrupted, error free, or free of harmful components; specific conditions outlined in our Data Processor Agreement apply to our processing of Your Content, including the security of Your Content.
By using the Services, you agree that you access and use the website and the Services on your own responsibility. Further, you agree that the availability, use or function of the Services or errors and/or omissions contained in connection with the Services shall not be made the basis for any claim, demand or cause of action against Capdesk or any Information Provider(s).
14. Force majeure
Neither party can be held liable for situations (delays, failure to perform any obligation under this Agreement, or other) normally referred to as force majeure, including, but not limited to, war, riots, terrorism, insurrection, strike, fire, natural disasters, currency restrictions, import or export restrictions, interruption of traffic, interruption or failure of energy supply, public data systems and communication systems, long-term illness or death of key staff, virus and occurrence of force majeure at subcontractors, partners and affiliates. You may terminate for cause pursuant to Section 10 in the situation where Capdesk fails to satisfy this Agreement due to force majeure at Capdesk's subcontractors, partners and affiliates.
This Agreement is subject to the laws of England and Wales, and general EU laws, with the exception of circumstances leading to the use of other laws; and shall be subject to the exclusive jurisdiction of the English High Court of Justice in London.
Should any dispute arise in connection with this Agreement, your use of the Services, or its performance, the Parties shall in a positive, cooperative and responsible spirit seek to initiate negotiations for the purpose of settling the dispute outside courts. If necessary, attempts must be made to transfer negotiations to executive level in the Parties' respective organizations.
If the Parties are unable to solve the dispute by negotiation, the Parties are entitled to demand that the dispute be finally settled by the ordinary courts of law. The English High Court of Justice in London has been selected as venue. You hereby expressly waive the right to commence legal proceedings in all other jurisdictions.
We can be contacted by contacting email@example.com.
We can be given notice under this Agreement by a) contacting firstname.lastname@example.org, and the notice will take effect upon obtaining a reply from Capdesk Support confirming the reception of the notice, or b) by personal delivery or recommended mail to Capdesk ApS, Nannasgade 28, DK-2200, Copenhagen, and the notice will take effect upon delivery for personal delivery or the business day after sending for recommended mail notices.
We may contact you or notice you under this Agreement by a) posting a notice on the Website, or b) send a message to the email address then associated with your Customer account (your Customer Contact Email then). Notices we provide by posting on the Website will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address associated to your account current. You will be deemed as having received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
All notices made or given must be in the English language.
The Parties' authorized signatories have duly entered into this Agreement:
Print Name: ___________
Print Name: Christian Gabriel
Appendix A - Definitions
"Application": The functions and applications associated with the Website.
"Content": Data, text, documents, and general files, audio, video or images.
"Customer": The company or entity that purchases the Services from Capdesk pursuant to this Agreement.
"Customer Contact Email": The email specified as contact email for the Customer, either a) the contact email on the Customer Company as registered at any time in the Application, if available, or b) the email of any active administrator of the Customer Company as registered at any time in the Application, if available, or, if explicitly agreed, c) another email as agreed with Capdesk outside the Application.
"Customer End User": Any End User that a) accesses or uses Your Content, or b) otherwise accesses or uses the Services under your Customer account.
"Data Processor Agreement": The Data Processor Agreement you enter when you agree to this Agreement, in the version either explicitly signed by the Parties on the Effective Date, or as located at , as it may be updated by us from time to time.
"Effective Date": The date where this Agreement takes effect.
"End User": Any individual or entity that directly or indirectly through another user or account: a) visits the Website, b) uses the Application, c) accesses or uses any Customer content via the Services or otherwise.
"Monthly Uptime Percentage": 100 % minus the proportion of Application downtime in month divided by total time in month. Downtime is when the Application is unavailable for any reason, as indicated by the Application's user interface being inaccessible for any interaction and the Application server returning http statuses of 503.
"Privacy Statement": Privacy Statement located at , as it may be updated by us from time to time.
"Registered User": An End User with a registered Capdesk account.
"Termination Date" means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.
"The Website": The website and any associated sites.
"Your Content": Content that you or any Customer End User uploads, shares, transfers or otherwise communicate electronically to the Application for processing, storage or hosting by the Services in connection with your Capdesk account. Your Content does not include your account information.
June 24th, 2019