These general terms and conditions (“General Terms”) apply between Wult ApS, Danish business registration no. 40692967 with registered address on Strandlodsvej 44, 3, 2300 Copenhagen S, Denmark (“Wult”) and you, the customer, who has agreed to receive the Wult Services under separate Sign-up Terms with Wult (“Customer”).
- 1 DEFINITIONS
- 2 SERVICES
- 3 CUSTOMER RESPONSIBILITIES
- 4 FEES AND PAYMENT
- 5 SUSPENSION
- 6 PROPRIETARY RIGHTS
- 7 CONFIDENTIALITY
- 8 PRIVACY
- 9 WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
- 10 INDEMNIFICATION
- 11 LIMITATION OF LIABILITY
- 12 TERM AND TERMINATION
- 13 FORCE MAJEURE
- 14 ASSIGNMENT
- 15 GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
- 16 GENERAL PROVISIONS
- “Acceptable Use Policy” has the meaning set out in clause 3.4.
- “Affiliate” means any entity controlled by a Party, controlling a Party, or under common control with a Party, and for the purposes of this definition: “control” shall exist through direct ownership of more than fifty per cent (50%) of the share capital.
- “Agreement” means these General Terms together with the Sign-up Terms for the Wult Services.
- “Customer Data” means all data and information, including all Personal Data submitted by the Customer to Wult through the use of the Wult Services.
- “Wult Services” means the services described in section 2.1. and as designated by Wult from time to time, as described on the Wult website and in the applicable Service Specifications, and as added by the Customer via the Sign-up Terms.
- “Competitor” means an entity that is making data extraction, data collection, or data governance available to the market on a commercial basis.
- “Confidential Information” has the meaning as set out in clause 7.1.
- “Term” means the term for the Wult Services set out in the Sign-up Terms, as renewed manually or by auto renew.
- “Effective Date” means the date upon which the Agreement commences, as specified in the Sign-up Terms.
- “Fees” means the fees payable by the Customer to Wult under the Agreement, as specified in the Sign-up Terms.
- “Sign-up Terms” means the Sign-up Terms executed by the Parties for the Wult Services, determining among other the selected pricing and Wult Services.
- “Other Data” has the meaning as set out in clause 2.1.
- “Party” means either of Wult or the Customer and “Parties” for both.
- “Personal Data” means personal data as understood under the applicable data protection legislation.
- “Service Specifications” means the description of the Wult Services, as set out on Wult’s web site, in Sign-up Terms, in any supplemental terms (if any) provided by Wult.
- “User” means an individual who is authorised by the Customer to use or access the Wult Services. A User shall only include (i) the employees of Customer or Customer’s Affiliates, as well as third party consultants and agents of the Customer or of its Affiliates (but excluding those of Wult’ Competitors), that are rendering services to the Customer and that need access to the Wult Services in relation to the rendering of such services.
- Wult Services. The Wult Services are data extraction and collection services of Customer Data and/or publically available data extracted from publically available sources by Wult, whereas the latter is referred to as Other Data.
- Provision of Wult Services. Wult shall make the Wult Services available to the Customer for the internal business purposes of the Customer pursuant to the terms and conditions of the Agreement.
- Support. Wult provides support services, as described in the Sign-up Terms or on the Wult web page.
- Upgrades Customer acknowledges that from time to time during the Term Wult may apply upgrades to the Wult Services, and that such upgrades may, result in changes to the appearance and/or functionality of the Wult Services. No upgrade shall disable, delete or impair the functionality provided through the Wult Services.
- The Customer shall provide Wult with all information, access and co-operation reasonably necessary to enable Wult to provide the Wult Services.
- Users. The Customer is responsible for identifying and authenticating all Users and to ensure Users’ compliance with this Agreement.
- Customer Affiliates. The Agreement is also for the benefit of the Customer’s Affiliates. The Customer must ensure that each of its Affiliates using the Wult Services will comply with the Agreement.
- It is the Customer only, that can amend and enforce the Agreement with Wult, and any changes do not require the consent of the Customer’s Affiliates.
- Any changes or enforcement by Wult towards the Customer’s Affiliates are made only directly with Customer.
- Acceptable Use Policy: The Customer can use the Wult Services in accordance with the Agreement and within the restrictions for data sources and data usage as specified for the Wult Services chosen by the Customer in the Sign-up Terms. Customer must further more comply with the following restrictions:
- Save to the extent expressly permitted by applicable law, the Customer shall not: (i) permit any third party who is not a User to access the Wult Services; (ii) copy, frame or mirror any part or content of the Wult Services, other than for its own internal business purposes; (iii) reverse engineer the Wult Services; or (iv) access the Wult Services in order to build a competitive product or service.
FEES AND PAYMENT
- Fees. The Customer shall pay all Fees as specified in the Agreement. Except as otherwise specified, all Fees are quoted and payable in United States dollars, payment obligations are non-cancellable, and Fees paid are non-refundable.
- No set-off. All amounts due under this Agreement from Customer to Wult shall be paid in full without any set-off, counterclaim, deduction or withholding.
- Invoicing and Payment. All Fees shall be payable within thirty (30) days of the date of the invoice or immediately by credit card. Fees may be invoiced up-front according to the Sign-up Terms.
- Disputed invoices: If the Customer disputes an invoice, it shall provide Wult written notice of such dispute within ten (10) working days of receipt of such invoice giving the reasons for disputing the invoice and Fees payable.
- Late payment. If any amounts invoiced hereunder are not received by Wult by the due date, Wult may charges late interest in accordance with the Danish Act on Interest (“Renteloven”), from the date such payment was due until the date paid.
- Taxes. Fees are exclusive of all applicable taxes, levies or duties imposed by taxing authorities, including without limitation value-added and withholding taxes, and the Customer shall be responsible for payment of all such taxes, levies or duties.
- Acceptable Use Policy: If the Customer does not comply with the Acceptable Use Policy or uses the Wult Services illegally Wult reserves the right to suspend the Wult Services with 24 hour notice before suspension.
- Suspension for late payment. If any Fees are thirty (30) days or more overdue, Wult may, without limiting its other rights and remedies, suspend its provision of the Wult Services until such amounts are paid in full.
- Wult shall notify the Customer in advance of its intention to suspend the Wult Service for non-payment of undisputed Fees thirty (7) days prior to any such suspension.
- Any such suspension of services shall not be eligible for any refund for Customer, or if no prepayments are made not be an excuse for payment of full Fees.
- Wult will reinstate the services upon Customer’s payment of the outstanding Fees.
- Notwithstanding the foregoing, Wult shall not suspend the Wult Services if the unpaid charges are subject to a reasonable and good faith dispute notified to Wult in accordance with clause 4.3 and the Customer is cooperating diligently to resolve the dispute.
- Licences. The Customer grants Wult and its Affiliates a nonexclusive, transferable, worldwide licence to access and use the Customer Data in accordance with this Agreement to provide the Wult Services to the Customer and its Users.
- Reservation of Rights. Except for the limited rights expressly granted to the Customer hereunder, Wult reserves all intellectual property rights, title and interest in and to the Wult Services, including in relation to derivative works of Other Data.
- Ownership of Customer Data. As between Wult and the Customer, the Customer exclusively owns all rights, title and interest in and to all Customer Data.
- Analytics. Wult may analyse Customer Data for security and operations management and for statistical analysis to improve the solutions offered by Wult.
- “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is made confidential by law or designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the pricing of any Wult Services. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. The Receiving Party shall protect the confidentiality of Confidential Information not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or the regulator, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted).
- In connection with provision of the Wult Services, Wult may, depending on the service, act as a data processor to the Customer.
- Wult and the Customer each acknowledge that in respect of services where the Customer is responsible for all collection, extraction and data-delivery flows and Wult merely provides the Wult platform and stores data on the Customer’s behalf, the Customer is the controller and Wult is the processor, and in respect of services where Wult provides pre-collected and enriched datasets managed by Wult to the Customer, each Party acts as an independent controller for such data.
- Where Wult and the Customer are independent controllers, each Party acknowledges that it is responsible for its own compliance with the Data Protection Legislation, including the General Data Protection Regulation (EU 2016/679) (GDPR) and any applicable laws supplementing the GDPR or otherwise relating to processing of personal data in any relevant jurisdiction.
- Where Wult acts as a data processor on behalf of the Customer, the Customer Data shall be processed in accordance with the obligations in article 28 of the GDPR and the data processing agreement which the Parties enter into separately.
- Wult’s sole responsibility regarding the use and protection of Customer Data are set forth in clause 11.3.
WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
- Wult warranties. Wult warrants that:
- it has validly entered into this Agreement and has the legal power to do so;
- The Wult Services do not infringe any third party intellectual property right within the venue set out in section 15.
- it shall perform the Wult Services materially in accordance with the specifications, as provided in the Sign-up Terms, on Wults web page or in other Wult formal documentations (the “Service Warranty” );
- Exclusion from Wult warranties: The service warranty shall not apply if the alleged breach has been caused by
- any unauthorised amendment to or use of the Wult Services;
- any non-compliance by the Customer under this Agreement.
- Disclaimer.Wult does not warrant that the Wult Services will operate in conjunction with the Customer Data or with any other hardware, software systems, software applications, services or data not provided by Wult. Wult disclaims any merchantability or fitness for a particular purpose or of satisfactory quality, in each case to the maximum extent permitted by applicable law.
- Exclusive remedies for Wult’s warranties: The Customer’s exclusive remedy and Wult’s entire liability for a breach of the service warranty shall be re-performance or repair of the applicable services.
- Customer Warranties. The Customer warrants that:
- it has validly entered into this Agreement and has the legal power to do so; and
- it will comply with the Acceptable Use Policy, and all data protection and marketing regulatory compliance in collecting, compiling, storing, accessing and using the Customer Data in connection with the Wult Services and in its use of the Wult Services.
- No Other Warranties. Except as expressly provided herein, each Party excludes all warranties, representations, terms, conditions or other commitments of any kind, whether express or implied, statutory or otherwise.
- Indemnification by Wult.
- Provided that the Customer remains in compliance with this Agreement, Wult shall defend the Customer and its Affiliates against any claims made by a third party that the use of the Wult Services, as permitted under this Agreement, infringe the intellectual property rights of a third party in the venue of the Agreement and shall indemnify the Customer for any damages awarded by a final court decision or to be paid pursuant to a final binding out-of-court settlement to which the Customer is a party, excluding any attorney’s fees and expenses incurred by the Customer in connection with any such claim.
- In the event of a claim, or if Wult reasonably believes the use of the Wult Services may infringe or misappropriate the rights of any third party, Wult may in its discretion and at no cost to the Customer: (i) modify the Wult Services so that they no longer infringe or misappropriate; (ii) obtain the rights for the Customer’s continued use of the Wult Services in accordance with this Agreement; or if neither (i) or (ii) are commercially reasonable, terminate the Customer’s rights to use such Wult Services upon written notice and refund the Customer any prepaid fees covering the remainder of the applicable Term after the effective date of termination.
- Wult shall have no liability under clause 10.1 in respect of any claim which arises from: (i) the necessary implementation of an industry standard or protocol; (ii) any modification or additions to the Wult Software not authorised by Wult in writing and/or supported by Wult; (iii) any use outside the scope of use set out in the Agreement; (iv) any third party materials used by the Customer as part of or in conjunction with the Wult Services; (iv) the Customer’s failure to accept patches, updates and bug fixes provided by Wult; (v) and the Customer’s continued use of the Wult Services or part thereof after being notified to stop due to a third party claim.
- Indemnification by the Customer. The Customer shall defend Wult, its Affiliates, against any claims made by a third party that:
- any Customer Data or third party materials used by Wult on behalf of the Customer, infringes the intellectual property rights of a third party;
- relates to any usage of the Wult Services which is not in compliance with the Agreement or results from the Customer’s failure to accept patches, updates and bug fixes provided by Wult;
- otherwise relate to the use, hosting and/or processing by Wult of the Customer Data, any third party materials or any modifications or additions to the Wult Services made by or on behalf of a Customer which are not authorised and/or supported by Wult; and
- Arise from a violation of any applicable laws and regulations, a violation of the legal rights of others or the unauthorised access to or disruption of any service, data, account or network in connection with the use of the Wult Services; and
- shall indemnify Wult for any damages awarded by a final court decision or to be paid pursuant to a final binding out-of-court settlement to which Wult is a party, and for reasonable attorney’s fees and expenses (including expert fees and expenses) reasonably incurred by Wult in connection with any such claim.
- Customer shall indemnify Wult for all third party claims in relation to Customer’s use of the free version of the Wult Services.
- Exclusive Remedy.The indemnities in clauses 10.1 and 10.3 and the refund payable pursuant to clause 10.1 represent the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in the relevant indemnity.
LIMITATION OF LIABILITY
- The Parties are liable for direct damages under this Agreement.
- Indirect damages are special, indirect, consequential, or incidental damages, including loss of data, loss of goodwill, loss of profit, loss of revenue, interruption of business, or for Wult only losses resulting from viruses or any other consequence of using or downloading any third party materials.
- The Parties’ maximum liabilities, whether in contract or tort, shall be limited to the last 12 months of paid Fees. If there is not yet a history of 12 months fees, then the maximum shall be the average monthly payments x 12.
- Any warranties and indemnifications shall however not be limited in amount, but are however subject to the agreed exclusive remedies set out in this Agreement.
- The Parties’ liability is however not limited in relation to:
- death or personal injury caused by the other Party’s negligence;
- fraudulent misrepresentation, wilful misconduct or gross negligence;
- The foregoing clauses 11.4 and 11.5 shall not apply to any claim by Wult related to the Fees provided for under this Agreement.
- To the extent permitted by law, Wult excludes all liability for damages in relation to the Customer installing, using or downloading third party materials in connection with the Wult Services. Wult makes no representations and provides no warranties in relation to third party materials. In particular, to the full extent permitted by law, Wult excludes all liability for any damage (including, without limitation, loss of data, interruption to business and loss of profits) resulting from viruses or any other consequence of using or downloading any Third Party Materials.
TERM AND TERMINATION
- Term of Agreement. This Agreement commences on the Effective Date and continues for the agreed Term.
- No Termination for convenience during a Term. Neither Party is entitled to terminate the Agreement for cause during a Term, but must instead not extend for another term.
- Termination for Cause. A Party may terminate this Agreement for cause by notice in writing: (i) if the other Party is in material breach of this Agreement, including – without limitation – by failing to comply with applicable law, and fails to cure such breach within thirty (30) days of receipt of written notice of such material breach from the non-breaching Party; or (ii) if the other Party becomes the subject of an insolvency event.
- Neither Party shall be responsible or liable for any failure or delay of performance under this Agreement if caused by a force majeure event, such as an act of war, cyberattack, government restrictions or regulations including sanctions and trade embargos or any other event outside the reasonable control of the obligated Party (“Force Majeure Event”). If such event continues for more than thirty (30) days, either Party may terminate the Agreement upon written notice to the other Party. A Force Majeure Event shall not excuse a Party from meeting its payment obligations under this Agreement.
- A Party may not assign or transfer this Agreement without the prior written consent of the other Party, which it cannot unreasonably withhold. Notwithstanding the foregoing, upon prior reasonable a Party may assign or transfer this Agreement to any of its Affiliates.
- For the avoidance of doubt, each Party may transfer its rights and obligations under this Agreement in connection with a business transfer, including – without limitation – a merger, demerger or sale of all or substantial parts of its activities to a third party, without obtaining the prior consent of the other Party.
GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION
- Governing Law. This Agreement and performance under it shall be governed by, and construed in accordance with, the laws of Denmark without regard to any portion of its choice of law principles and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.
- Disputes. Any dispute between the Parties arising from, relating to or in connection with this Agreement (“Dispute”), shall be resolved in accordance with this clause 15.
- Informal Dispute Resolution. Any Dispute arising under this Agreement shall be considered in person or by telephone by the designated representatives (“Representatives”) of each Party within seven (7) working days of receipt of a written notice from either Party specifying the nature of the Dispute. The Representatives shall discuss the problem and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding relating thereto.
- Arbitration. If the Dispute is not resolved within thirty (30) days after their first meeting, the Dispute shall be submitted to, and finally determined by, binding arbitration administered by the Danish Institute of Arbitration in accordance with its Rules of Arbitration, as such rules are in effect on the date of delivery of a demand for arbitration (the “Arbitration Rules”). The arbitration shall be heard and determined by three (3) arbitrators appointed in accordance with the Arbitration Rules. The arbitration proceeding shall occur in Copenhagen, Denmark and shall be conducted in English (unless both Parties are Danish, then the proceedings will be in Danish). The arbitration and all related proceedings and discovery shall be confidential.
- Smaller claims: Any claims below USD 50,000 will be handled by the Arbitration Rules for simplified arbitration under the Danish Institute of Arbitration.
- Each of the Parties confirms that this represents the entire understanding, and constitutes the whole agreement between the Parties.
- Wult may provide additional terms or update the terms of the Agreement and/or the Service Specifications in the following circumstances:
- Wult introduces new features or functionality to the Wult Services;
- upon the purchase of additional Wult Services or upon Auto-Renew;
- collectively, (the “Amendment“), provided always that such Amendments shall not materially reduce the scope or the functionality of the Wult Services or increase the Fees and at least sixty (60) days’ written notice is provided to the Customer.
- If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable by a court of competent jurisdiction, the remainder of the Agreement, as applicable, will not be impaired or affected thereby, and each term, provision and part will continue in full force and effect, and will be valid and enforceable to the fullest extent permitted by law.
- The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the Parties.