Unless otherwise applies under mandatory rules under applicable law, these subscription terms (the "Terms") apply to the relationship between SmartWeb ApS, registration no. (CVR no.) 29 17 98 24 ("SmartWeb"), and the subscriber (the "Customer") in respect of all SmartWeb subscription services and any optional services chosen by the Customer as well as any subsequent additional modules, individually customised solutions under the Terms or similar products.
1. Conclusion of subscription contract
1.1 The Terms are accepted as soon as the Customer ticks off "I have read and agree to SmartWeb's Subscription terms" when placing an order on SmartWeb's website http://www.get-smartweb.com (the "Website") or via SmartWeb Admin https://login.smartweb.dk ("Administration"). Together with the order confirmation received by the Customer following acceptance of any order by SmartWeb, the Terms constitute the contractual basis of the Customer's subscription (the "Subscription").
2. Content and term of the Subscription
2.1 The Subscription grants the Customer a non-transferable and non-exclusive right to use "SmartWeb CMS" or "SmartWeb Shop" as well as any optional services and to make subsequent orders for additional modules, individually customised solutions, cf. clause 6 below, or similar products included in the Subscription, including the Standard Hosting Package and the Standard Support Package (collectively the "Application"). Via Administration, an overview of the Customer's type of subscription and any optional services may be found. Via Administration, the Customer may also order additional optional products if the Customer, for example, requests more server space or traffic than is included in the Standard Hosting Package.
2.2 The Subscription becomes effective as from the time of the Customer's receipt of SmartWeb's order confirmation, cf. clause 1.1 above, and the Subscription contract is concluded for a consecutive period of six months at a time. Upon expiry of any six-month period, the Subscription will automatically be extended for a new six-month period, unless the Subscription has been terminated for convenience beforehand by the Customer, cf. clause 14 below.
3.1 SmartWeb's Subscription prices and specifications applicable from time to time are available at the Website. All prices are stated in Euros exclusive of VAT.
3.2 SmartWeb reserves the right to change the Subscription prices and specifications at one month's prior notice, however, no earlier than as from the following invoice from SmartWeb to the Customer.
3.3 SmartWeb warrants that the prices of the modules existing at the time of conclusion of the Subscription contract will not increase except for increases corresponding to the increase in the net price index.
4. Invoicing and terms of payment
4.1 SmartWeb will invoice the Customer every six months for the following six-month period. The invoice and any letters requesting payment will be sent by email to the email address designated by the Customer. If the Customer changes its email address, the Customer is obliged to update the address via Administration.
4.2 Payment must be made no later than eight days as from the date of the invoice (the "Due Date"). If the invoice is not paid in due time, SmartWeb will have the rights following from the provisions of the Danish Interest Act (in Danish “renteloven”), unless otherwise provided by these Terms. SmartWeb will send the first letter requesting payment no earlier than 10 days after the Due Date. If the invoice is still not paid, a second letter requesting payment will be sent no earlier than 10 days after the first letter requesting payment. SmartWeb will charge a fee of EUR 14 for each letter requesting payment. SmartWeb will charge default interest of 1.5% on the principal amount for each month following the Due Date. Interest will be added to the principal amount and will carry interest. If the claim is referred to debt recovery, the provisions thereon of the Interest Act will also apply.
4.3 If SmartWeb has not received payment within seven days as from dispatch of the second letter requesting payment, SmartWeb may suspend the Customer's access to the Application. The Customer will not receive a refund for periods in which access to the Application was suspended. Access will be reopened following receipt of payment, unless SmartWeb has terminated the contract for breach beforehand, cf. clause 15 below.
5. Use of API module
5.1 At no extra charge, SmartWeb grants the Customer access to use, at its own discretion, an Application Programming Interface (the "API Module") contained in "SmartWeb CMS" or "SmartWeb Shop". The API Module may be used to integrate "SmartWeb CMS" or "SmartWeb Shop" with external systems, such as an accounting system, by retrieving, setting up, editing and deleting entities in the Customer's "SmartWeb CMS" or "SmartWeb Shop". It is not possible for SmartWeb to oversee the enormous amount of applications of the API Module and, consequently, SmartWeb does not warrant compatibility or integration between the external system or data applied by the Customer and "SmartWeb CMS" or "SmartWeb Shop". Any use of the API Module is, consequently, at the Customer's own risk. Furthermore, SmartWeb does not incur any liability as a consequence of defects caused by the Customer's incorrect use of data and data objects as well as by provision of incorrect arguments or paths in the API Module.
6. Terms governing development of customised solutions
6.1 Any agreement on the development of individually customised solutions ("Customised Solutions") is subject to separate agreement in writing between SmartWeb and the Customer. The price to be paid by the Customer for Customised Solutions is to be separately agreed upon with SmartWeb.
6.2 Unless otherwise agreed in writing, the Customer will be granted a non-transferable and non-exclusive right to use Customised Solutions, and, upon development, such Customised Solutions will be included as part of the Application subject to the Subscription.
6.3 The provisions in these Terms apply to the agreement on development of Customised Solutions, including, but not limited, to clause 2.1 on right of use, clause 8 on intellectual property rights, clause 12 on remedy, clause 13 on liability as well as clause 16 on governing law and jurisdiction. Following the development of the Customised Solutions, the provisions in these Terms will also apply on a continuous basis to the Subscription including the Customised Solutions.
7. Operation, updating and improvements
7.1 SmartWeb endeavours to ensure the highest possible level of operating reliability, but is without any liability for operational disruptions caused by circumstances beyond SmartWeb's control. Such disruptions include, for example, power failure, errors in network equipment, telecommunications connections, etc.
7.2 SmartWeb reserves the right to temporarily restrict or interrupt access to the Application in special circumstances, including out of regard for operational reliability or safety, on the grounds of, for example, replacement of technical equipment or software updating. SmartWeb endeavours at all times to restore normal operations as quickly as possible. Preferably, such disruptions will not take place during daytime.
7.3 SmartWeb intends and is entitled to update and improve the Application on a continuous basis. SmartWeb is, however, not obliged to update and improve any Customised Solutions, cf. clause 6 above, unless otherwise agreed in writing.
8. Intellectual property rights
8.1 All intellectual property rights to the Application, including Customised Solutions, such as copyrights and trademark rights, as well as any rights under the Danish Marketing Practices Act (markedsføringsloven) belong to SmartWeb. The Customer will not acquire any title to the Application.
8.2 SmartWeb will not provide the Customer with the source code to the Application, including Customised Solutions, and the Customer is not entitled, at its own discretion or by way of third party assistance, to attempt in any way to acquire knowledge of the source code or to copy the Application.
8.3 The Customer is not entitled to disclose, let and lend out or otherwise assign its right of use under the Subscription to any third parties, unless otherwise agreed in writing with SmartWeb.
8.4 SmartWeb's logo and other features must not be removed from the Application.
8.5 Upon termination of the Subscription, irrespective of the reason therefor, the right to use the Application will also lapse, including the right to use Customised Solutions, cf. clause 6 above, unless otherwise agreed in writing with SmartWeb.
9. The Customer's own data in the Application
9.1 The Customer has proprietary right to any data incorporated into the Application and is free to use such data at its discretion. In the event of termination of the Subscription, the Customer is free to export any data available via the export function of the Application. Any Customer data will be deleted no earlier than 60 days after termination of the Subscription, and, subsequently, SmartWeb will not be obliged to store any of the Customer's data.
9.2 SmartWeb will perform backups of the Customer's data once a day. SmartWeb is able to restore any backups against a charge for each backup restored. Notwithstanding the aforesaid, backups may only be restored for the past month.
10. Design Store
10.1 In connection with or following the conclusion of a subscription contract with SmartWeb, the Customer will be able to purchase a design via the Design Store ("Design"). By purchasing a Design via the Design Store, the Customer is granted a non-transferable and non-exclusive right to use the Design for one subscription solution. Consequently, the Design may be used on the sites and the language layers requested by the Customer for its subscription solution, but it cannot be transferred to another subscription solution. The Design may, however, be transferred to the Customer's new subscription solution in the event that the original subscription solution is discontinued. SmartWeb's support department may assist the Customer in such transfer against a charge of EUR 27. If the Customer wishes to use the Design for a new subscription solution, the Customer must purchase a new Design for the subscription solution in question. SmartWeb does not warrant that the relevant Design will at all times be available in the Design Store, just as the price of the Design may vary.
10.2 The Customer is not entitled to sell or otherwise transfer the Design to the subscription solutions of third parties or to persons outside SmartWeb.
10.3 The Customer is entitled to customise the Design as required. SmartWeb is entitled, at its discretion, to make changes in the Design, for example in connection with technical updating or extensions, or if SmartWeb assesses that the Design contains elements deemed to be illegal, discriminatory, defamatory, etc. The Customer may at all times download a new version of the Design from the Design Store, but the Customer is itself responsible for installing any new updates.
10.4 Some Designs are made available in cooperation with external suppliers ("Design Store Partners"). Any and all intellectual property rights connected to the Design remain owned by the Design Store Partner. If the Customer violates the rights held by the Customer in the relevant Design by, for example, distributing the Design, and thereby infringing the rights of the Design Store Partner, the Design Store Partner is entitled to take legal action against the Customer. In that respect, SmartWeb is entitled to adopt administrative measures, such as to change or close down the Customer's subscription solution.
10.5 SmartWeb is able to support the functions of the Design, but cannot assist in any technical development of the Design. If the Customer requests such technical development, the Customer is suggested to contact the Design Store Partner, who may provide such assistance against payment.
10.6 The Customer – and not SmartWeb – is responsible for ensuring that the installation of a new Design does not overwrite or damage the Customer's existing or previous designs or the designs of third parties.
10.7 The Customer will not be able to cancel any purchases of Designs made from the Design Store.
11. Customer liability
11.1 The Customer is liable for compliance with applicable law and any authority regulations, including for lawful use of the Application. The Customer is obliged to indemnify SmartWeb against any claims attributable to any breach of law and regulations.
12. SmartWeb's right and obligation to remedy defects
12.1 In the event of any defects in the Application, the Customer has no remedies for breach other than remedy of such defects, cf. clause 12.2 below, except for termination for breach in the event that SmartWeb is in material breach of its obligations under the Subscription, cf. clause 15 below. Unless otherwise provided by these Terms, the Customer hereby expressly and irrevocably waives any other remedy for breach.
12.2 SmartWeb is obliged and entitled to seek remedy of defects in the Application within 10 days of the Customer giving notice of such defects in writing. In the event of material defects and SmartWeb not being able to remedy such defects within 10 days of the Customer giving notice of such defects, the Customer will receive reimbursement for the amount paid for the Subscription for the amount of days in excess of the 10 days it takes for SmartWeb to remedy the defects.
13. SmartWeb's liability
13.1 Subject to the limitations laid down in these Terms, SmartWeb is liable for loss according to the general principles of Danish law.
13.2 SmartWeb cannot be held liable for loss occurring as a consequence of ordinary negligence.
13.3 SmartWeb is only liable for the Application. SmartWeb is not liable for and does not make any warranties as to the Customer's or third party's standard software, products, materials, tools and methods used by the Customer together with the Application, or for their ability to function together. Similarly, SmartWeb cannot be held liable for any circumstances attributable to the Customer's use of the API Module, cf. clause 5 above.
13.4 SmartWeb is in no event, including in the event of defects or delays, liable for operating loss, loss as a result of price differences, loss of profits, loss of customers, expense losses, consequential loss or other indirect loss. Loss of data is deemed to constitute indirect loss.
13.5 SmartWeb's liability for damages is in all events limited to an amount which does not exceed the Customer's payment exclusive of VAT for the 12 months preceding the event giving rise to liability, however, in all events to a maximum of EUR 2,680.
13.6 In the event that SmartWeb's performance of obligations is prevented or postponed as a consequence of force majeure, defects in or delay of services from sub-suppliers, or otherwise due to circumstances beyond the control of SmartWeb, SmartWeb is not liable towards the Customer. In such events, SmartWeb is entitled to suspend the Customer's access to the Application until the event preventing it from performing its obligations has ceased.
14. Termination on the part of the Customer
14.1 The Subscription is non-terminable for the initial six months. Following such six-month period, the Customer is entitled to terminate the Subscription for the following six-month period giving as little as one workday's notice via Administration. The Customer's notice of termination must, however, be received by SmartWeb prior to SmartWeb's dispatch of invoice to the Customer for the subsequent period, and the Customer accepts that, for administrative reasons, the brief notice period is balanced by the said payment obligation. In the event of termination on the part of the Customer, any prepayments in respect of the Subscription will not be reimbursed. Upon termination, the Customer is also obliged to pay any invoices issued and unpaid at the time of termination.
15. Termination for breach
15.1 In the event of material breach of the Subscription, the party not in breach may terminate the contract. Conduct constituting material breach includes 1) SmartWeb not remedying any material defects in the Application within 60 days of the Customer giving notice of such defects in writing, 2) the Customer failing to fulfil its payment obligation for 30 days as from the Due Date of the invoice, or 3) the Customer using the Application in violation of law or these Terms.
15.2 Prior to any termination for breach, the party not in breach must, however, notify the party in breach in writing of the reason for termination, cf. clause 15.1 above, and give the party in breach 10 days to remedy such breach if the breach may be remedied considering its nature.
16. Governing law and jurisdiction
16.1 Any dispute arising out of or in connection with the Subscription, including any disputes regarding the existence, construction or validity of the Subscription or the contracts originating therefrom, must be settled according to Danish law by the Court of Aarhus as the court of first instance.