General Terms of Business
These General Terms of Business specify the terms applying for the Customer’s use of NetCloud’s and its suppliers’ software as well as any other services and/or products offered to the Customer including the web-based solution and online tools for network management (hereinafter collectively referred to as the “system“, which is hosted and provided by NetCloud A/S, business reg. no 37 39 57 22 (hereinafter referred to as “NetCloud”).
The Agreement between NetCloud and the Customer incorporates these General Terms of Business.
1. Effective date and duration
The Customer’s right of use to the system begins on the effective date, cf. the order form, and will run until the Agreement is terminated for cause or by notice by either one of the parties, cf. clause 13.
2. The scope of the right of use
NetCloud hereby grants the Customer a right to use the system and the related online documentation and tools hosted by NetCloud. The Customer’s right of use only applies for the Customer’s own use of the system and the Customer is thus not entitled to transfer the right of use or in other ways provide a third party with access to use the system.
The right of use covers the maximum number of users as specified in appendix B. The fee for the right of use may depend on the extent of the services, functionality, and the number of users which the Customer decides on. The fee amount is also specified in appendix B.
3. Extending the right of use
If the Customer subsequently wants to extent the right of use, either with additional services, functionalities and/or the number of users, this extension must be ordered separately. An order can be submitted to Net- Cloud. When an order on extension has been confirmed in writing by NetCloud and the additional fee is paid by the Customer, the Customer’s right of use is extended correspondingly.
4. Services and service level
The system, services and the service levels are de- scribed in appendix C, System, services and SLA (Ser- vice Level Agreement).
4.a Description of the software and services
Appendix C includes a general description of the soft- ware and services offered. The system is developed on an ongoing basis and new services and functionalities will be added or modified in this connection. On Net- Cloud’s website is an updated overview of the system.
Upon request and according to agreement hereon, Net- Cloud offers to assist with the configuration of the system.
4.b. Hardware
The Customer may purchase hardware which is offered by NetCloud. Such hardware is delivered to the Customer in accordance to separate agreement between the parties. NetCloud is, however, not liable for the hardware, but will assist the Customer in case of any claims against the hardware manufacturer and/or sup- plier unless otherwise agreed.
4.c. Consultancy services
If the Customer needs NetCloud’s further assistance in connection with the integration to other systems or needs or other consultancy services which NetCloud is able to deliver, such services can be delivered upon sep- arate agreement hereon whereas the delivery is made in accordance with these General Terms of Business.
4.d. Uptime, monitoring and backup
NetCloud aims at an uptime of more than 99% within the primary performance period. Any planned maintenance must be made within the secondary performance period. The system will thus be unavailable to a short or large extent within the secondary performance period, and NetCloud has therefore not stated any aimed uptime during the secondary performance period.
Relevant monitoring tools have been installed in the system, and the system is monitored every day and night.
In connection with a system breakdown, NetCloud is only obligated to re-establish the stored data based on the latest backup. As an extra safety measure, the Customer and its users are therefore recommended to save all data on its own system (any uploaded documents etc.).
A detailed description of uptime, monitoring, backup and other safety measures including a backup power system, physical protection of servers, encryption, use of logins/passwords, digital signature, firewall and anti- virus applications etc. is included in appendix C.
4.e. Maintenance
NetCloud must ensure a continuous operation of the system, including ongoing maintenance of the system by correcting errors and inconveniences and by further developing the system. All planned maintenance is made during the secondary performance period. It may, however, be necessary to perform immediate rectifica- tion of errors or implementation of changes for e.g. safety purposes, or in case of critical errors, cf. clause 4.g. In such cases where rectification cannot wait until the secondary performance period, NetCloud may in certain circumstances be forced to take the whole, or part of the system out of operation during the primary performance period. NetCloud will to the extent possible seek to minimize the inconveniences of such rectification and will notify the Customer of the maintenance to the extent this is possible.
If the system is completely or partly inaccessible due to errors or maintenance, the reasons and status hereof and the expected completion time will appear from Net- Cloud’s website.
4.f. The Customer’s reporting of errors and breakdown
If the Customer establishes errors or breakdown in the system, the Customer must report these by using the helpdesk, cf. clause 4.h. The Customer is, however, recommended to visit NetCloud’s website prior to reporting the error, as the error may already have been established and a remedy has been initiated.
4.g. Response time
Remedy of errors will be initiated within the response times in appendix C calculated from the time of the establishment of the error/reception of the Customers re- porting of the error depending on which occurs first. Errors are divided into the categories of: critical, noncritical and minor errors.
Critical errors include errors which cause the whole, or part, of the system or any crucial functionality to be un- available.
Non-critical errors are errors causing certain functionalities that are not of crucial importance for the use of the system to become unavailable or causes the response times in the system to become inconvenient for the Customer and its users while the functionality is working.
Minor errors are small errors and inconveniences which cause the Customer and its users to experience small inconveniences in the daily use, e.g., that insignificant functionality does not work as expected, including long response times in certain functionalities which, how- ever, do not prevent the use of the system and its functionalities.
Remedy of critical errors will be initiated within 24 hours calculated in normal working hours. Remedy of noncritical errors will be initiated without undue delay within normal working hours. Minor errors will be remedied within reasonable time and NetCloud reserves the right to postpone the remedy to a later update of the system.
Normal working hours are all working days between
9.00 – 16.00 (Danish time) with the exception of 24th and 31st December, 1st January and 5th June. Working hours are hours during the normal working hours.
4.h. Helpdesk
NetCloud provides helpdesk services, to which it is possible to ask questions by using the email service and other helpdesk tools. The Customer must not expect a response to inquiries by telephone, as all contact must be made using the email service.
The helpdesk only includes guidance and specific advice regarding the use of the system, and the Customer must especially note that the following are not covered by the helpdesk service:
- Response to questions which necessitates that NetCloud’s consultants visit the Customer on
- Errors and problems caused by equipment, telephone connection or third-party software and which cannot be ascribed to the system.
- Questions regarding third party
NetCloud reserves the right to invoice hours spent by NetCloud to respond to inquiries which are outside the current helpdesk service. Invoices for these services are issued pursuant to the current terms and prices at any time for delivery of NetCloud consultancy services.
The helpdesk is staffed on working days from 9.00–16.00. NetCloud endeavors to respond to all inquiries within 24 hours after receipt. If this, against all expectations, is not possible, NetCloud will within this dead- line inform the Customer of a deadline before which the Customer will receive a response.
At each inquiry, the Customer is referred to the tools available on the website, and is instructed to provide the Customer’s name, the superuser’s name and a specific description of the problem. This gives NetCloud the necessary information to be able to respond to the question.
The Customer appoints the number of superusers specified in appendix B. Only these superusers are entitled to use the helpdesk, and the names of the superusers must continuously be updated by the customer and informed to NetCloud.
4.i. Changes in the services and service level
With written notice of 4 months before the expiry of a subscription period, cf. clause 5, NetCloud is entitled to change the services and the service level with effect for the new subscription period.
By giving a reasonable notice hereof, NetCloud may, however, make small changes to the services and the service levels, provided that the nuisance of this change will entail must be regarded as minor and does not e.g. impose any loss or extra costs on the customer. There may thus be small changes made to procedures and the use of the system resulting from necessary technical changes made of safety considerations.
It cannot be excluded that due to safety considerations, including the appearance of new safety threats and risks or other external reasons, NetCloud will have to change the services and the service levels and that this may entail significant inconvenience for the Customer. The Customer will be informed in writing of such changes. If the Customer does not accept such changes no later than 14 days from the date the change comes into effect, the Customer may extraordinarily terminate this Agreement with a written notice of 1 month to the expiry of a quarter.
4.j. Training
NetCloud offers training in the use of the system and services. Training sessions are agreed on individual terms, and the parties agree on the extent, time, place and price.
5. Prices and payment terms
Endpoint subscription: The fee is based on the functionality and services agreed with the Customer and the number of activated devices. The fee is specified in appendix B. The monthly fee covers the period of one calendar month. (hereinafter referred to as the “subscription period“) Any number of devices that has been activated and registered any time during that month will accumulate to the total number devices for that given month. The accumulated counting forms the basis of billing and cannot be disputed or corrected. The fee is invoiced once a month. The first payment is invoiced in the calendar month when first device is activated.
Network services: The fee is agreed based on the functionality and services that the Customer wants and on the number of users. The fee is specified in appendix B. The fee covers 1 month (hereinafter referred to as the “subscription period“) calculated from the effective date of this Agreement, cf. the order form. The fee is invoiced in for one quarter in advance. The first payment is in- voiced in the calendar month when first device is activated.
The fee is adjusted once every year with effect from 1 January in accordance with the percentage change of the Danish net price index compared to the most recent change. Further, NetCloud reserves the right to adjust the fee and the calculation basis of the fee with a notice of 4 months.
The fee falls due for payment 8 days after the invoice date. The Customer may not withhold or “setoff” any amounts due under this Agreement. In case of late payment, NetCloud is entitled to claim interest payments from the due date of 1.5% per month.
If the payment has not been settled by the due date, NetCloud is entitled to prevent the Customer’s and its users’ access to the system, until the payment has been received by NetCloud.
6. Data
The Customer and its users own their data stored in the system.
As part of the provision of the system the Customer will grant NetCloud access to or entrust personal data to NetCloud and/or NetCloud will as part of the system collect and process personal data on behalf of the Customer. The Customer and NetCloud has entered into a data processor agreement establishing their respective obligations and rights in relation to processing of personal data stating that NetCloud acts only by documented instructions from the Customer, cf. appendix D.
It rests with the Customer to ensure that the processing of personal data carried out under the instructions to NetCloud has a legal basis according to the applicable data protection legislation, including the General Data Protection Regulation (the “GDPR”) as well as any EU member state legislation supplementing the GDPR.
7. Confidentiality
In addition to the data stored in the system, NetCloud also confidentially processes other information about the Customer and its users, except in connection with information which is publicly known. NetCloud, how- ever, reserves the right to use the Customer as reference but will not without specific accept from the Customer refer potential customers to contact the Customer.
The Customer warrants that the Customer’s users confidentially process information in the system. The Customer and the users are obligated to keep usernames and passwords confidential and a misuse of these to access the system is of no concern to NetCloud. If the Customer or a user loses its username/password or if there is a risk that these have been disclosed to unauthorized persons, the username/password can be changed by contacting helpdesk.
8. Other terms for using the system
The Customer and its users must observe reasonable requests from NetCloud and its suppliers regarding the use of the system, just as they must follow the general procedures applying for the use of the system. Such procedures include granting NetCloud and its supplier’s access to the Customer’s equipment in order to install the necessary software for NetCloud to comply with this Agreement and to communicate with the Customer’s equipment. The Customer must provide NetCloud with any necessary consents including consents from the Customer’s users if so required by applicable law.
In addition, the Customer accepts that NetCloud or its suppliers are entitled to update software installed on the Customers equipment and to perform anonymized statistical analysis of access to and use of the system for the purpose of measuring the effectiveness of the system, optimizing performance and ensuring compliance with this Agreement.
The Customer warrants that the use of the system is for legal purposes only and is in accordance with the cur- rent legislation in force at any time. If NetCloud establishes that the Customer or its users are the reason for the safety being compromised, or that the system has been used or attempted to be used for illegal purposes, NetCloud reserves the right to prevent the Customer and its users from the wholly or partly use of the system, just as illegal material will be removed. This especially applies in cases where NetCloud may incur liability for acting passively in connection with established infringements; see the Danish E-Commerce Act. Prior to removing the material from the system, Net- Cloud will, to the extent possible, send the Customer a written warning with a deadline for when the Customer must have corrected the situation.
The Customer is obligated to indemnify NetCloud for any claim brought against the Customer due to the Customer’s or its users’ misuse of the system and otherwise illegal behavior.
9. Intellectual property rights
NetCloud and/or its suppliers own all rights to the system, including copyrights, trademark rights and other intellectual property rights. The Customer must not crack or attempt to crack passwords, remove installed barriers on functionalities or connect more users than what has been agreed, cf. appendix B. Any violation of NetCloud’s software is regarded as a material breach of this agreement.
The Customer does not acquire any intellectual property rights to the system or other services delivered including consultancy services.
10. Limitation of warranties and liability
THE SYSTEM IS PROVIDED ON AN “AS-IS” AND “AS- AVAILABLE BASIS”. ACCORDINGLY, IN CASE OF ANY ERRORS OR INCONVENIENCES WITH THE SYSTEM, NETCLOUD WILL TAKE COMMERCIALLY REASONABLE PRECAUTIONS IN ORDER TO MITIGATE THE POTENTIAL CONSEQUENCES. NO OTHER OBLIGATIONS OR REMEDIES APPLY.
NETCLOUD, HOWEVER, DISCLAIMS A) ALL WARRANTIES WITH RESPECT TO THE SYSTEM, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTBILITY AND FITNESS FOR A PARTICULAR PURPOSE AS WELL AS B) ANY LIABILITY FOR THE CUSTOMER’S OR ITS USER’S INDIRECT LOSS OR CONSEQUENTIAL LOSS, INCLUDING OPERATING LOSS, LOSS OF EXPECTED REVENUE, LOSS OF PROFIT, LOSS OF GOODWILL, LOSS/DAMAGE OF DATA OR ANY OTHER TYPE OF COMMERCIAL DISRUPTION OR FINANCIAL CONSEQUENTIAL LOSS WHICH MAY OCCUR IN CONNECTION WITH USING THE SYSTEM AND SERVICES PROVIDED, DEFECTS THEREIN, COUNSELLING OR DELIVERY OF OTHER SERVICES PURSUANT TO THIS AGREEMENT.
NETCLOUD’S AGGREGATE LIABILITY FOR DAMAGES FOR LOSS AND/OR DAMAGE DURING THE TERM OF THIS AGREEMENT WILL IN NO CIRCUMSTANCE BE GREATER THAN THE LOWER OF THE FOLLOWING: A) DKK 250,000, OR B) THE AMOUNT CORRESPONDING TO THE FEE PAID BY THE CUSTOMER DURING THE PAST 3 MONTHS, CF. CLAUSE 5, CALCULATED FROM THE DAY THE CLAIM WAS RAISED.
11. Force Majeure
NetCloud is not liable for any damage and loss the Customer may suffer directly or indirectly as a result of NetCloud’s delay or hindered performance of its obligations pursuant to this Agreement due to a force majeure situation. A force majeure situation is e.g., war, mobilization, terror attacks, natural disasters, strikes, lockout, fire, import and exportation restrictions, virus attack, sickness of key employees, power failure, cut/break- down in third party telephone connections and other un- foreseeable circumstance, which NetCloud could not by reasonable measures have prevented.
If a force majeure situation has lasted more than 90 days, the Customer is entitled to terminate the Agreement with immediate effect.
12. Assignment
Pursuant to this Agreement, the Customer is not entitled to assign rights or obligations to a third party.
NetCloud is entitled to assign all rights and obligations under this Agreement to a third party.
13. Termination
13.a. Termination by notice
The Agreement can be terminated by both parties with a written notice of 3 months to the expiry of a calendar year, unless otherwise specifically agreed in writing.
NetCloud may, however, terminate the Agreement by giving a shorter notice provided such termination is due to a supplier’s termination of a service that is important for NetCloud’s and/or Customer’s use of the system.
If the Agreement has not been terminated in accordance with the above, the Agreement is automatically extended for another calendar year.
13.b. Breach
If one of the parties materially breaches the Agreement and the breach has not been remedied no later than 30 days from the receipt of request hereof from the non- breaching party, the non-breaching party is entitled to terminate the Agreement for cause without further notice.
If the Agreement is terminated by the Customer for breach, the Customer is entitled to receive a refund of prepaid fees for use of the system from termination until the end of the particular billing period.
If the Agreement is terminated by NetCloud, NetCloud is entitled to block the Customer’s and the users’ access to the system and the Customer is continuously obligated to pay the fee in accordance with clause 5 until the time, the Customer could have terminated the Agreement, cf. clause 13.a.
13.c. Other terms in connection with termination
Until the termination is effective, the Customer and its users have access to the system and are able to extract all stored data. NetCloud must, however, deliver a copy of the Customer’s data to the Customer if so requested, but assumes, however, no further liability or assignments, unless otherwise agreed in writing. If NetCloud assumes an assignment, the fee hereof will be invoiced according to the time spent and other resources are in- voiced at the current price at any time for NetCloud’s services.
Upon expiry of the Agreement, the Customer must dis- able and remove any software received and/or installed by the Customer pursuant to this Agreement.
In case of termination of the Agreement, the Customer is not entitled to any refund of fees paid, unless the Agreement is terminated by NetCloud giving a shorter notice due to a supplier’s termination. In such event, a proportionate part of the fees regarding the remaining period must be reimbursed.
14. Waiver and variation
No failure or delay by either party in enforcing the pro- visions of the Agreement shall prejudice or restrict the rights or remedies of that party nor shall any waiver of its rights or remedies operate as a waiver of any subsequent or other breach and (save as otherwise provided in the Agreement) no right or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right or remedy available to that party by law and each such right or remedy shall be cumulative.
15. Severability
Any provision of the Agreement which is declared un- lawful, void or unenforceable by any competent authority or court shall to that extent be deemed to be severed and the other provisions of the Agreement shall continue unaffected.
16. Notices
Any notice or other communication given under the Agreement shall be in writing and shall be served by delivering it personally or sending it by certified post or courier to the address and for the attention of the relevant party set out in the Agreement.
Any alteration to such details shall be notified to the other party in accordance with this clause but shall not take effect until 5 days after the notice of the alteration has been given.
For the avoidance of doubt, notices shall not be communicated by email.
17. Further assurance
Each party shall from time to time at the request and expense of the other party execute any additional documents and do any other acts and things which may be reasonably required to implement the provisions of the Agreement.
18. Whole agreement
The Agreement and attached appendices constitute the entire and only agreement and understanding between the parties and supersedes any previous agreement or understanding (whether in either case oral or written) relating to the subject matter of the Agreement.
Each party agrees that it shall have no right of action or remedy against the other arising out of or in connection with any statement, representation, warranty or understanding of any person (whether a party to this Agreement or not) which is not set out in this Agreement.
19. Choice of law and jurisdiction
Any dispute arising from the parties’ cooperation and this Agreement must be settled by the parties by negotiation. Disputes which cannot be settled by the parties must be settled pursuant to the substantive law of Den- mark and by the Copenhagen City Court as the exclusive jurisdiction. This is not a hindrance for bringing the case before the Danish Maritime and Commercial court or the Eastern High Court pursuant to the rules thereon in force at any time.
Version: November 2018