Vilkår for kunder

1. Introduction

1.1 These TERMS AND CONDITIONS – CUSTOMER TERMS apply to the WhistleSafe platform (hereinafter “WhistleSafe”) that WhistleSafe ApS, Danish reg. no. 44412667, Ndr Dragørvej 151, 2791 Dragør, provides to the customer (hereinafter the “Customer”).

1.2 The order confirmation together with any appendices and these TERMS AND CONDITIONS – CUSTOMER TERMS constitute the agreement (hereinafter the “Agreement”) between WhistleSafe and the Customer. In case of any discrepancies between the order confirmation and these TERMS AND CONDITIONS – CUSTOMER TERMS, the terms of the order confirmation will take precedence.

1.3 Where a Customer has entered into an agreement on the use of the System through an administrator(s) associated through the system (hereinafter the “Partner”), these TERMS AND CONDITIONS – CUSTOMER TERMS will apply to the Customer’s use of the System, regardless of the agreement with the Partner.

2. License and usage of the System

2.1 The System is a solution that enables a whistleblower to report reprehensible conditions with the Customer. WhistleSafe hereby grants the Customer the right to use the System based on these terms and conditions. The right of usage is restricted to the Customer’s personnel and its Partner. Other users may only be granted rights of usage to the System subject to written agreement between WhistleSafe and the Customer.

2.2 The Customer’s right of usage is non-exclusive and limited to the Term, cf. clause 16.1.

2.3 In case it is agreed that the Customer has been offered a test period, the Customer’s right of usage to the System is limited to the agreed test period, and the Customer’s access to the System will be blocked on expiry of the test period unless a subscription to the System is agreed within the test period.

3. Technical requirements

3.1 The System is available online and access to the System may be established by usage of most available browsers.

4. Limitation on the Customer’s usage

4.1 All rights granted under these terms and conditions are non-exclusive and non-transferable. Accordingly, if not expressly permitted in these terms and conditions, the Customer may not distribute, sublicense, rent, lease, lend, resell or transfer its right of usage of the System, in whole or in part. In case the Customer is part of a group of associated companies, such associated companies must be specified in the agreement between the Customer and WhistleSafe and these terms and conditions shall apply concurrently to all such companies. The group companies are jointly referred to as the Customer in these terms and conditions.

4.2 The Customer shall, at all times, act with due care and lawfully towards third parties, particularly by respecting the intellectual property rights and other rights of third parties and the privacy of third parties, by refraining from disseminating information in a manner that is contrary to the law, and from granting unauthorized access to the System.

4.3 The Customer may use the System only in accordance with these terms and conditions, and the Customer may particularly not reverse engineer, decompile or disassemble the System, or attempt to do so, work around any technical limitations in the System or against restrictions in System documentation.

4.4 WhistleSafe reserves the right to verify eligibility with clause 4 at any time and suspend the Customer’s access to the System if the eligibility requirements are not met. WhistleSafe is further entitled to suspend the Customer’s access to the System if the Customer fails to pay its subscription after the first reminder of late payment.

5. Changes and updates

5.1 WhistleSafe may change the content or scope of the System. If WhistleSafe wishes to implement major changes that may result in a change in the Customer’s current procedures, WhistleSafe shall inform the Customer about the matter as soon as possible and no later than one (1) month prior to the implementation of such changes. Regardless of clause 16, the Customer is entitled to terminate the subscription with effect from the end of the notice period of one (1) month and to receive a proportionate share of the license fee paid for the current Term.

5.2 The Customer may forward wishes to change the scope or content of the System. WhistleSafe is, however, not obliged to change the System to accommodate the wishes of the Customer.

6. Prices and payments

6.1 The Customer shall pay the agreed prices set out in the price list of WhistleSafe or a prevailing contract document. The prices can be adjusted annually in accordance with applicable prices as set out in the price list of WhistleSafe. The adjustment of prices may, however, not exceed 10 per cent.

6.2 The subscription is paid in advance for each Term, cf. clause 16.1. Each Term is invoiced when it starts: every month on the monthly subscription and every twelve (12) months on the yearly subscription.

6.3 Payments shall be made no later than 14 days following the Customer’s receipt of invoice from WhistleSafe in the case that the Customer is billed by WhistleSafe directly. In case of late payment, WhistleSafe charges interest for default on the amount owing at the time in question, at a rate of 1.5 (one and a half) per cent per month from the due date. Interest will be calculated each month on the outstanding balance due.

7. Support

7.1 WhistleSafe shall during the Term, cf. clause 16, provide technical support pertaining to the System. The support may be supplied by e-mail within WhistleSafe’s ordinary working hours. Requests for support shall be handled within a reasonable time. However, WhistleSafe does not warrant any particular response time. Any specific agreement on response time must be made in writing and shall be annexed as an appendix to the Agreement, or to these terms and conditions where the agreement is entered into with the Partner.

8. Service Level Agreement

8.1 WhistleSafe endeavors to ensure that the System is available at all times. However, the System may be unavailable due to preventive, corrective or adaptive maintenance or other forms of service announced by WhistleSafe in advance, and due to other circumstances beyond WhistleSafe’s control. WhistleSafe will endeavor to notify the Customer in advance about any circumstances that may affect the availability of the System.

9. Back-up

9.1 WhistleSafe makes backups of the Customer’s data in its possession. The backups shall be retained with due care and in accordance with the prevailing organizational and technical security of WhistleSafe, and WhistleSafe can keep each backup copy for a maximum of three months. All copies of the Customer’s data shall be deleted no later than three months after the expiry of the Term, cf. clause 17.

10. Intellectual property rights

10.1 The Customer’s right to use the System, including documents, images, tools, videos and guides contained in the System, is limited to the Term, cf. clause 16.1, in accordance with clause 2. WhistleSafe retains all other rights to the System including documents, images, tools, videos and guides contained in the System including ownership rights and copyrights, cf. clause 14.

10.2 The Customer’s data is the property of the Customer, and WhistleSafe is not permitted to copy or delete the Customer’s data without instructions from the Customer, cf. however clauses 9 and 17 on deletion and backup. WhistleSafe is, however, entitled to use anonymized data including, but not limited to, number of cases, case categories and number of users in the system, for statistical or research purposes in order to enhance the performance of the System.

10.3 The Customer represents that it has legal rights to all its data and all materials uploaded by the Customer on the System (as the case may be) and that no Customer data infringes the rights of third parties.

10.4 The Customer grants WhistleSafe the right to use the Customer logo in marketing, sales, financial, and public relations materials and other communications solely to identify the Customer as a customer.

11. Personal data

11.1 WhistleSafe processes personal data on behalf of the Customer, and the Parties have agreed to a data processing agreement pertaining to WhistleSafe’s processing of personal data on behalf of the Customer. The parties maintain that WhistleSafe is the “processor” and the Customer is the “controller” within the meaning of the personal data legislation. Where the Customer has entered into a data processing agreement directly with the Partner, WhistleSafe will act as a sub-processor to the Partner.

11.2 WhistleSafe is not entitled to payments for its assistance to the Customer pursuant to the data processing agreement.

12. Confidentiality

12.1 WhistleSafe must ensure that all information received from the Customer is kept secret in accordance with the data processing agreement.

13. Guarantee

13.1 The function of the System is described in clause 2.1. WhistleSafe does not guarantee that the System is free of errors and functions without interruption. However, WhistleSafe shall continuously maintain the System and make its best efforts to fix errors in the System within reasonable time.

13.2 Guarantees, representations and warranties are binding on WhistleSafe only if agreed to specifically in writing.

14. Third-party rights

14.1 All intellectual property rights to the System including documents, images, tools, videos and guides contained in the System are held exclusively by WhistleSafe, its licensors or its suppliers.

14.2 WhistleSafe indemnifies the Customer against any claim of a third party based on the allegation that the System including documents, images, tools, videos and guides contained in the System infringes third-party rights. In the event that the Customer is met with claims pertaining to its use of the System and/or documents, images, tools, videos and guides contained in the System, the Customer shall immediately inform WhistleSafe in writing about the existence and content of the claim and leave the settlement of the claim, including any arrangements made in this regard, entirely to WhistleSafe.

14.3 The Customer shall collaborate with WhistleSafe in the defense and any related settlement negotiations by providing WhistleSafe with appropriate information and any assistance required for said defense or settlement. The Customer is entitled to reimbursement of legal costs in this context. In the event of an infringement claim, WhistleSafe shall be entitled either to procure the Customer the right to continued use of the System, bring the infringement to an end by modifying or replacing the System with other software, websites, data files, designs, documentation etc. which has essentially the same functionality as the material in contention, or terminate the Customer’s right of usage to the System with immediate effect and reimburse the Customer its paid subscription fee deducting a reasonable amount for the value of the Customer’s use of the System. The Customer has no further right to compensation pertaining to infringement of third-party rights.

15. Liability

15.1 WhistleSafe’s liability is limited to the Customer’s direct losses. WhistleSafe’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, and loss as a result of claims of the Customer’s customers is excluded. WhistleSafe’s liability for destruction or loss of data is likewise excluded.

15.2 WhistleSafe’s liability is limited to an amount equal to the subscription fee paid for one year (excluding VAT). For there to be any right to compensation, the Customer must always report the loss to WhistleSafe in writing as soon as possible and no later than 3 months after the loss has occurred. The exclusions and limitations referred to in clauses 15.1 and 15.2 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of WhistleSafe.

15.3 The “inter partes” relationship between the Customer and its Partner(s) is of no relevance to WhistleSafe.

15.4 The limits of WhistleSafe’s liability in this clause 15 shall apply to the fullest extent permitted by applicable law.

16. Term and termination

16.1 The Customer chooses a monthly or a yearly subscription when subscribing. The subscription runs in periods of one (1) month on the monthly subscription and twelve (12) months on the yearly subscription (each hereinafter a “Term”). The first Term starts on the Customer’s acceptance of these TERMS AND CONDITIONS – CUSTOMER TERMS or, where a test period has been agreed, cf. clause 2.3, when the test period ends.

16.2 The monthly subscription has no minimum term and is renewed with a new Term every month. The Customer may terminate it at any time with effect from the end of the current Term. The fee paid for the current Term is not refunded.

16.3 The yearly subscription runs for a fixed Term of twelve (12) months and is renewed with a new Term of twelve (12) months unless terminated. The Customer may terminate it at any time with effect from the end of the current Term, but not earlier.

16.4 The Customer terminates the subscription in the System, on the “Subscription” page, or by e-mail to kontakt@whistlesafe.dk. A termination sent by e-mail is deemed given on the day WhistleSafe receives it. If the Customer terminates during a test period, cf. clause 2.3, the subscription ends when the test period ends, and no fee is charged.

16.5 WhistleSafe may terminate the Customer’s subscription and right of usage to the System with a notice of one (1) month to the end of a Term. A party is further entitled to terminate the Customer’s right of usage of the System if the other party is in material breach of its obligations under these terms and conditions, unless such material breach has been remedied by the other party within a period of no less than 30 days. Lack of payment is considered a material breach.

17. Expiry

17.1 WhistleSafe is obliged to delete the Customer’s data, including personal data, no later than three (3) months following the expiry of the Term. WhistleSafe is not entitled to payment for its services rendered to the Customer in connection with the expiry of the Customer’s usage of the System. WhistleSafe is, however, entitled to use anonymized data including, but not limited to, number of cases, case categories and number of users in the system, for statistical or research purposes in order to enhance the performance of the System, cf. clause 10.2.

17.2 If the Customer has a Partner, the expiry of the Partner’s right of usage to the System shall have no effect on the Customer’s right of usage to the System, which shall continue subject to the terms and conditions set out in the subscription agreement between the Customer and WhistleSafe. However, any agreement under which the Customer is invoiced by the Partner shall cease on the expiry date, and future invoices shall be sent directly from WhistleSafe to the Customer.

18. Governing law and disputes

18.1 The Agreement and these terms and conditions are governed by Danish law.

18.2 Any dispute arising out of or in connection with the Agreement and these terms and conditions, including any disputes regarding the existence, validity or termination thereof, shall be settled by the Danish courts. The venue shall be the venue of WhistleSafe.