Last updated: 02.12.2022
Please read these terms and conditions (“Terms and Conditions”) carefully before using the services offered by Arkyn ApS. (“ARKYN"). By mutually executing one or more order forms (“Service Order”) or by accessing or using any of ARKYN’s services in any manner, you (“You” or “Customer”) agree to be bound by these terms (together with the Service Order the “Agreement”) to the exclusion of all other terms.
If there is an inconsistency between any of the provisions in these Terms and Conditions and the Service Order, the provisions in these Terms and Conditions shall prevail.
You represent and warrant that you have the authority to enter into the Agreement.
ARKYN has developed certain software applications which it makes available to its customers on subscription basis via the internet (software as a service) for integration with Customer’s ERP solution specified in the Service Order (the “Services”).
Implementation of the Services, including configurations/customizations, and support are only provided by ARKYN implementation partners, see Section 4.
ARKYN’s responsibilities under these Terms and Conditions are limited to the core functionality and features in the Services as described in the standard documentation made available to the Customer (the “Documentation”), cf. Section 3 and 4.
During the period specified in the Service Order, ARKYN has agreed to provide and the Customer has agreed to access and pay for the Services subject to these Terms and Conditions and the Service Order. Any reference to the Services in the Agreement includes (i) the online software applications provided as-is as part of the Services (the “Software”) and (ii) the Documentation.
ARKYN confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with these Terms and Conditions.
Subject to these Terms and Conditions, the Customer is granted a non-exclusive, payable, non-sublicensable, non-transferrable user right to permit limited number of authorized users, as specified in the Service Order, employed by the Customer to use the Services covered by the Service Order to prove the expected value of the Services (“POV”) during the term specified in the Service Order for the POV (“POV-TERM”).
Subject to these Terms and Conditions, the Customer is granted a non-exclusive, payable, non-sublicensable, non-transferrable user right to permit limited number of authorized users, as specified in the Service Order, to use the Services covered by the Service Order during the term specified in the Service Order, cf. Section 6.1.
The Customer's use of the Services shall be restricted to:
The Customer shall not, directly or indirectly, except as explicitly stated in these Terms and Conditions, sublicense or transfer the rights granted to it under the Agreement.
Except as explicitly stated in these Terms and Conditions, the Agreement shall not grant the Customer any right or license to the Services, or any other intellectual property rights or property of ARKYN, and no license or other rights shall be created by implication or estoppel. In particular, but without limiting the generality of the foregoing, no right or license in or access to executable code or source code to Software is granted hereunder.
The Customer shall not itself nor permit any others to:
The Customer shall not, directly or indirectly, use such information disclosed by ARKYN, or gained by the Customer from the Services to design, specify, develop, integrate, market, license, distribute, or host any service that is competitive with any of the Services, or disclose any such information to any third party.
For the avoidance of doubt, Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if the Customer did not authorize such use.
ARKYN may, without any liability and without any effect on Customer’s obligation to pay , suspend Customer’s access to or use of the Services immediately if ARKYN reasonably believes that the conditions listed above in Section 1.4 are not complied with and/or Customer’s use of the Services may pose a security risk to or may adversely impact the Services.
ARKYN and/or its licensors own all intellectual property rights in the Services. ARKYN retains all right, title, and interest in and to the Services, including the Software, products, works or other intellectual property created, used, provided or made available by ARKYN under or in connection with the provision of the Services. The Customer may from time to time provide suggestions, comments or other feedback to ARKYN with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for ARKYN notwithstanding anything else. Customer grants to ARKYN a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair ARKYN’s right to develop, acquire, license, market, promote or distribute products, software or technologies based on the Feedback.
The Customer shall permit ARKYN or one of ARKYN appointed auditor to audit the Services to establish compliance with these Terms and Conditions.
The Customer shall, except if otherwise agreed, retain ownership to data, information or other material provided, uploaded, or submitted by Customer to the Software while using the Services (“Customer Data").
The Customer is solely responsible for Customer Data including, but not limited to:
The Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is terminated.
Subject to Section 2.3.1, Customer hereby grants to ARKYN a limited license to use the Customer Data as necessary to provide the Services to Customer. The Customer acknowledges and consents to the collection of Customer Data resulting from the activities and obligations set forth in the Agreement, including but not limited to periodic collection of information in connection with improvements to the Services.
Notwithstanding anything to the contrary, ARKYN may freely use Aggregated Anonymized Data (as defined below) for ARKYN’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing ARKYN’s current and future products and services). “Aggregated Anonymized Data” means data submitted to, collected by, or generated by ARKYN in connection with Customer’s use of the Services, but only in aggregate, anonymized and de-identified form which is not linked specifically to the Customer or any specific individual.
ARKYN and Customer is separately obliged to ensure that the personal data legislation in force at any given time in Denmark is complied with, at present especially Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and on the repeal of Directive 95/46 / EC (the General Data Protection Regulation (GDPR)). ARKYN and Customer are separately also obliged to comply with The Danish Data Protection Act (no. 502 of 23 May 2018) on supplementary provisions to the regulation on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the Data Protection Act). ARKYN is not responsible for ensuring that Customer complies with Customer's own obligations in accordance with applicable law, including as data controller.
If Customer’s use of the Services requires disclosure of personal data to ARKYN which will be processed by ARKYN as data processer on behalf of the Customer, the Customer is responsible to ensure that such processing is subject to a Data Processing Agreement (DPA) and that a DPA is entered into between Customer and ARKYN: When applicable, ARKYN's template DPA must be used in relation to these Terms and Conditions.
ARKYN will use commercially reasonable efforts to make the Services available to Customer at least 99.8% of the time during each month during the Term (as defined under Section 6), excluding downtime attributable to any scheduled maintenance (the “Uptime SLA”). Support for the Services must be purchased via an implementation partner and is not included in the fees stated in the Service Order, see Section 4.
If ARKYN fails to comply with the Uptime SLA for 4 consecutive months, or (ii) ARKYN fails
to comply with the Uptime SLA for 6 months out of any rolling 12-month period, the Customer shall be entitled to terminate the Agreement for cause, cf. Section 6.3 and 6.4.
For any breach of the above undertaking, ARKYN’s sole liability and Customer’s exclusive remedies are those described in Section 6.4 below.
ARKYN’s Services are continuously improved in connection with usual maintenance at ARKYN’s discretion. Ordinary maintenance, bug fixes and new features are deployed at an ongoing basis to the greatest extent in connection with scheduled maintenance.
ARKYN delivers the Services as-is and does not provide any implementation, customization, or support services under these Terms and Conditions.
Dedicated ARKYN system integrators can assist you with assessing which configurations will best suit your need and how to best implement the Services for your organization. Such implementation partners will typically also offer support services post-implementation.
Any acquisition by the Customer of services from a system integrator, and any exchange of data between Customer and any system integrator, is solely between Customer and the system integrator in question. ARKYN does not warrant or support any products or services provided by system integrator, whether they are designated by the system integrator as ARKYN specific, validated by ARKYN or otherwise. ARKYN is not responsible for implementation partners’ services nor is ARKYN responsible for any disclosure, modification or deletion of Customer Data resulting from access to the Services by a system integrator.
Customer shall pay the fees as set forth in each applicable Service Order in accordance with the pricing and payment terms agreed in the Agreement. Fees as set forth in the Service Orders (a) are based on the Services purchased and not actual usage; (b) are exclusive of taxes; (c) are non-cancellable and, subject to Section 6.4, non-refundable; and (d) cannot be decreased during the Term (as defined below).
If the Customer in accordance with the Service Order is eligible for a POV, the Service Order will specify the fee for the POV (“POV Fee”). The subscription fees for the Services will be specified based on a monthly fee model (“Subscription Fee”).
ARKYN has the right to adjust prices up to 3% each calendar year due to inflation and general increases in costs of operations and development.
Customer shall provide accurate and updated billing contact information.
If Customer is paying for the Services by credit card, Customer will provide ARKYN with valid credit card information and promptly notify ARKYN of any changes necessary to charge the credit card. The provision of credit card information to ARKYN authorizes ARKYN to charge the credit card for the Services specified in a Service Order, and any renewal(s).
If the Service Order specifies that payment will occur by a method other than a credit card, Customer shall provide a purchase order number in the applicable amount (or reasonable alternative proof of Customer’s ability to pay the fees specified in a Service Order), and promptly notify ARKYN of any changes necessary for payment of an invoice.
POV Fee shall be invoiced and paid before the Agreement enters into force.
ARKYN will invoice the Customer for subsequent Subscription Fee either quarterly or on a yearly basis, depending on the frequency stated in the Service Order.
Invoices are due pursuant to the corresponding Service Order.
If any invoiced amount is not received by ARKYN by the due date, then without limiting ARKYN’s rights or remedies, ARKYN (a) shall from the first day of delayed payment be entitled to interest on any overdue amount at the rate of 1.5% of the outstanding balance per month and ARKYN may condition future renewals and Service Orders on shorter payment terms and (b) may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and ARKYN shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
If overdue fees including interest have not been paid within sixty (60) calendar days of the due date, ARKYN may send to the Customer a written notice stating that the Agreement, including these Terms and Conditions, shall be terminated as a result of the Customer's breach, unless settlement has taken place within sixty (60) calendar days of receipt of the notice.
Termination for breach shall not take place if the Customer settles the overdue fee, including interest, prior to the expiry of the deadline.
If ARKYN is required to initiate legal action due to wrongfully non-payment of fees, the Customer shall bear all costs resulting from the collection of such fees.
All amounts payable to ARKYN under the Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
The Agreement shall, unless otherwise terminated as provided in Section 6.2, commence on the effective date specified in the Service Order and shall continue for the POV-Term.
If the Agreement is not terminated during the POV-Term, the Agreement shall continue for 36 months (“Subscription Term”) and, unless terminated as provided for in this Section 6.1, be automatically renewed for successive periods of 12 months (each “Renewal Period”), unless:
The Subscription Term together with any subsequent Renewal Periods shall constitute the “Term”.
The Customer has the right to terminate the Agreement during the POV-TERM with one (1) month’s written notice to the end of the POV-TERM.
A party may terminate the Agreement in whole or in part by written notice in case the other party is in material breach of the terms of the Agreement which is not remedied within thirty (30) calendar days from written notice thereof, or if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits its inability to pay its debts as they become due.
Upon any expiration or termination of the Agreement, the Customer shall (i) immediately cease use of the Services, and (ii) return all ARKYN Confidential Information (as defined below) and other materials and information provided by ARKYN. Any termination or expiration shall not relieve Customer of its obligation to pay all fees accruing prior to termination.
In case of Customer’s termination for breach, ARKYN shall refund fees paid in advance, pro-rated with reference to the effective date of the termination. Repayment of fees shall be Customer's sole remedy and ARKYN's sole liability under these Terms and Conditions.
If the Agreement is terminated due to Section 1.4, the Customer shall pay to ARKYN all fees set forth in the corresponding Service Order in full.
The following provisions will survive termination: Sections 1.6 (Ownership), 6.4 (Effect of termination), Section 6.5 (Survival), Section 7 (Confidentiality), Section 10 (Limitations of liability), Section 11 (Miscellaneous). Any release, indemnity obligation under these Terms and Conditions is independent and shall also survive termination of the Agreement. Any other term and condition that by its nature is intended to survive termination of the Agreement survives termination unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the party giving the indemnity.
Any information concerning ARKYN and the Customer that may reasonably be considered as proprietary or confidential, whether in a tangible or intangible form, and whether or not designated by a party as proprietary or confidential, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data, software, source codes, valuations, costs, rates, and prices and any other information of a proprietary or confidential nature relating to the disclosing party or its business, as well as any information created or derived from any such information, irrespective of disclosing medium and storage, is considered confidential information of the disclosing party (“Confidential Information”). Without limiting the generality of the foregoing, Confidential Information includes any information regarding or gained from the Software, Documentation, and any other part of the Services.
The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of these Terms and Conditions, (b) is disclosed to the receiving party by a third party without an obligation of confidentiality of which the receiving party was or should have been aware, (c) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party, or (d) is required by applicable laws, governmental, or other public authority regulation or decision, or ordered by a court of law, in which case the receiving party may disclose Confidential Information as required by law or court order; provided that the receiving party provides the disclosing party with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.
Without prejudice to the foregoing, (i) the receiving party may disclose Confidential Information to a third party (that is not a competitor of the other party), to the extent necessary for the performance of the Services, provided that the receiving Party shall procure that such third party shall be bound by such confidentiality obligations at least as onerous as set out in this Section 7, (ii) ARKYN may use the Feedback as described in Section 1.6, and (iii) ARKYN is entitled to name the Customer as a user of the Services for reference purposes in its marketing efforts, and may strictly for the purpose thereof reproduce the Customer's tradenames and logos.
The receiving Party shall ensure that Confidential Information shall be handled securely and shall be stored in locked files. Electronically stored information shall be inaccessible to unauthorized personnel.
The Customer will defend, indemnify, and hold ARKYN harmless from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim with respect to: (a) Customer Data and (b) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data.
ARKYN will defend, indemnify, and hold the Customer harmless from and against any third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party that Customer’s use of the Services directly infringes or misappropriates a third party’s intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in the Agreement, ARKYN shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Data with the Services; (b) the combination of any products or services, other than those provided by ARKYN to Customer under the Service Order, with the Services; or (c) non-discretionary designs or specifications provided to ARKYN by Customer that caused such Infringement Claim.
In the event of a claim for which a party seeks indemnity or reimbursement under this Section 8 (each an “Indemnified Party”) and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) weekdays after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defence of the claim, including retaining counsel of its own choosing. The Indemnified Party shall cooperate with the indemnifying party in the defence of any such claim. Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent.
The provisions of this Section 8 (i) constitute the entire obligations and liability of the parties regarding each party’s respective liability under this Section 8, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party, and (ii) is subject to the liability cap set forth in Section 10.
The Services are provided as-is, and when used by the Customer in accordance with the provisions of the Agreement and in compliance with the applicable Documentation, will perform substantially in accordance with the Documentation during the Term.
The undertaking in this Section 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to ARKYN's instructions, or modification or alteration of the Services by any other than ARKYN.
Pursuant to the notice provision of these Terms and Conditions, the Customer shall report to ARKYN any breach of the undertaking set in Section 9.1. In the event of a breach of warranty by ARKYN under the Agreement or any other specific undertakings, Customer’s sole and exclusive remedy, and ARKYN’s entire liability are those described in Section 6.3 and 6.4 above.
ARKYN does not represent or warrant that the operation of the Services (or any portion thereof) will be uninterrupted or error free, meet the Customer’s requirements, or that the Services (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by ARKYN, except as expressly specified in the applicable Documentation.
ARKYN is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
The Customer acknowledges that except as expressly set forth in this Section 9, ARKYN makes no express or implied representations or warranties of any kind with respect to the Services, or other conditions and all warranties, representations, express, implied, or statutory, including those of merchantability, fitness for a particular purpose, or any warranty regarding the availability, reliability or accuracy of the Services, which to the fullest extent permitted by applicable law, are excluded from the Agreement.
Except as expressly and specifically provided in these Terms and Conditions:
Nothing in these Terms and Conditions exclude the liability of the Customer for any breach, infringement or misappropriation of ARKYN’s intellectual property rights.
Customer hereby certifies that Customer will comply with all current applicable export control laws. Customer agrees to defend, indemnify and hold ARKYN harmless from any liability for Customer’s violation of any applicable export control laws.
The Customer shall comply with all applicable laws and regulations in its use of the Services.
The Customer shall not assign any rights or obligations pursuant to these Terms and Conditions, unless agreed between the parties.
Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to acts of God, Internet outage, terrorism, war, fires, earthquakes, cyber-attack and other disasters (each a “Force Majeure”). Notwithstanding the foregoing: (i) the Customer shall be liable for payment obligations for Services rendered; and (ii) if a Force Majeure continues for more than thirty (30) calendar days, either party may have the right to terminate the Agreement upon written notice to the other party.
All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), by recognized courier service or sent by email to the addresses stated in the Service Order.
Both parties agree that no agency, partnership, joint venture, or employment is created as a result of the Agreement. The Customer does not have any authority of any kind to bind ARKYN.
ARKYN is entitled to mention in its marketing material and on its website that an agreement regarding provision of the Services to the Customer has been entered.
Any dispute arising out of or in connection with these Terms and Conditions shall be governed by and construed in accordance with the laws of Denmark without giving effect to any conflict of law provision. The parties agree that Copenhagen City Court shall be the legal venue.
ARKYN is entitled to update these Terms and Conditions to reflect changes in applicable laws, modifications to the Services, or for any other legitimate and reasonable reason.
No variation of the Service Order shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Service Order. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
If any term or provision of these Terms and Conditions are held to be illegal or unenforceable, it shall be deleted, but the validity or enforceability of the remainder hereof shall not be affected.