Software as a Service Agreement

1. BACKGROUND

This SaaS agreement aim to define the conditions under which Kanda ApS CVR 33590369, a company registered under the laws of Denmark (hereinafter: "Kanda") supplies the Customer who has taken out a subscription the services defined in these general terms and conditions (“the Agreement”).

2. DEFINITIONS

For purposes of this Agreement, the definitions set forth below apply:

“Adapted Customer Content” means any Customer Content that has been developed, designed or produced by or with assistance from Kanda, at Customers request.

“Customer” means a customer who has taken out a subscription on the Services.

“Customer Content” means all data and materials provided by Customer to Kanda for use in connection with the Services, including, without limitation, know how, data files, presentations and graphics.

“Documentation” means the reference manuals/materials, online presentations, and other information describing the SaaS and/or Services provided or otherwise made available to Customer. Documentation includes specifications for the Services set forth in any Order or PA.

“FWA” means a separate framework agreement for consultancy services entered into between customer and Kanda regarding Other Services.

“Intellectual Property Rights” (or “IPR”) means copyrights, domain name rights, know-how, patents, patent applications, service marks, trademarks, trade names, and other trade secret rights, and all other intellectual property rights and similar forms of protection of intellectual property.

“Order" means any online or written order form for Services, submitted by Customer either during an online order process (via a Kanda website, via email or pdf), or separately signed by Customer and submitted to Kanda, and any future purchase order or order form that makes reference to this Agreement.

“Other Services” means all technical and non-technical services performed or delivered by Kanda under this Agreement, including, without limitation, implementation services and other professional services, training and education services.

“PA” means an agreement for Other Services as described in the FWA.

“Platform” means the web platform on bridge.kanda.dk from which the Services is provided to Customer.

“SaaS Services” refer to the specific Kanda internet-accessible service identified in an Order that provides use of Kanda Software that is hosted by Kanda or its service provider and made available to Customer over a network on a term-use basis.

“Services” means all services delivered by Kanda to Customer under this Agreement.

“Software” means the object code version of any software to which Customer are provided access as part of the Service, including any updates or new versions.

“Subscription Term” shall mean the period specified in an Order during which Customer will have access to and use of Services. The Subscription Term in ongoing unless either party delivers written notice of non-renewal to the other party.

“User” means any of Customers employees, consultants, customers, contractors or agents authorized by Customer to access and use the Services on behalf of Customers for its intended use, in each case subject to such person’s agreement to be bound by the terms of this Agreement.

3. ACCEPTANCE OF THE AGREEMENT

3.1 If the Customer is subscribing directly via the Platform, its acceptance of these general terms and conditions is demonstrated by ticking a box in the registration form. If subscription is entered into via any other method, acceptance of an estimate or continued use of the Services shall also constitute acceptance of the Agreement. Customer may only accept the Agreement in its entirety. Any form of acceptance with reservations will be considered to be null and void.

4. SAAS SERVICES

4.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for Customers business operations and subject to the terms of the Agreement. Customer may, subject to the conditions on any Order or PA, allow its Users to use the services for this purpose. Customer is responsible for its Users’ compliance with the agreement.

4.2 Customer acknowledges that this Agreement is a services agreement and Kanda will not be delivering copies of the Software to Customer as part of the Services unless otherwise agreed in writing.

5. CUSTOMER RESPONSIBILITIES

5.1 Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Kanda exercises no control over the content of the information transmitted by Customer through the Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the purpose the Services are provided for and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Kanda against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Kanda has no obligation to monitor Customer’s or Users use of the Services, Kanda may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

6. INTELLECTUAL PROPERTY

6.1 The SaaS Service

The Services (and any modifications or derivatives thereto) and any other material that Kanda make available as part of this Agreement, are and shall remain the sole property of Kanda, including all IPR therein and thereto. All forms of disassembly, decompilation, unencryption, extraction, reuse, copying and, more generally, all forms of reproduction, representation, dissemination and use of all or part of any one of these elements without Kanda’s authorization are strictly prohibited and may lead to legal proceedings.

6.2 Customer Content

The Customer will retain exclusive, full and entire ownership of Customer Content. For the purposes of supplying the Services, the Customer grants Kanda, free of charge, non-exclusive, perpetual, transferable, sub-licensable, royalty-free, non-revocable, worldwide license to use Customer Content under the terms, conditions, and for the duration set out in the Agreement.

6.3 Adapted Customer Content

The Customer shall own any Adapted Customer Content on the conditions set forth in clause 6.2, if Customers ownership is indicated in an Order, a PA or the Documentation for that specific Adapted Customer Content. Customer shall not become owner of any Third-party IPR included in the Adapted Customer Content, provided however that such Third-party IPR is described in the relevant Order, PA or in the Documentation.

6.4 Not withstanding the foregoing clauses 6.2 and 6.3 Kanda is entitled to make use of general experiences, know how, code libraries, concepts and ideas, developed for Customer under this Agreement, in future projects without compensating the Customer, under the precondition that Kanda complies with the confidentiality regulations of this Agreement.

Kanda shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, relating to the operation of the Services.

7. CONFIDENTIALITY

7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Kanda includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Kanda to enable the provision of the Services. The Receiving Party agrees:

a. To take reasonable precautions to protect such Proprietary Information, and

b. Not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

7.2 The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document:

a. Is or becomes generally available to the public, or

b. Was in its possession or known by it prior to receipt from the Disclosing Party,

c. Was rightfully disclosed to it without restriction by a third party,

d. Was independently developed without use of any Proprietary Information of the Disclosing Party or

e. Is required to be disclosed by law.

8. FINANCIAL TERMS

8.1 Pricing

Customer will concurrently pay the applicable fees set forth in the Order, in the Order-stated currency at the agreed billing cycle for the subscription. Customer will pay such fees within thirty (30) days after the date of the invoice. All Fees are non-cancelable, and fees paid are non-refundable unless otherwise provided in this Agreement.

8.2 Late Payment

Late payments will bear interest at one and one-half percent (1½%) per month or the maximum rate allowed by law. Customer will reimburse Kanda for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.

8.3 Payment Delays and Default

By express agreement between the parties, any delay in the payment of all or part of a sum on its due date under the Contract will lead automatically and without prior notice to the following:

a. All sums owed by the Customer will become immediately payable and/or

b. The Services will be suspended immediately until all the sums due have been paid in full.

8.4 Taxes

All Fees are exclusive of all applicable taxes related items, and Customer is responsible for payment of all such items, excluding taxes based solely on Kanda’s income.

9. TRIAL USE OF THE SERVICE

9.1 If specified in the Order or elsewhere, Customer may order certain Services for trial, nonproduction purposes subject to the terms and conditions of the Agreement. Services acquired for trial purposes are provided “as is” and Kanda does not offer any warranties for such Services.

10. TERM AND TERMINATION

10.1 Subject to earlier termination as provided below, this Agreement is for the initial term as specified in the Order and shall be automatically renewed for additional periods of the same duration as the initial term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

10.2 Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within fourteen (14) days after receipt of notice of such breach.

10.3 Upon any termination, Kanda will make all Customer Content and Adapted Customer Content available to Customer for electronic retrieval or deletion for a period of thirty (30) days, but thereafter Kanda may, but is not obligated to, delete stored Customer Content. All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

11. HOSTING AND SUPPORT

11.1 Service Availability

Kanda will use commercially reasonable efforts to maintain the Services availability to operate, subject to downtimes resulting from maintenance, repairs and upgrades. Kanda will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Kanda will not be liable for any failures in the Service or any other problems which are related to:

a. The Customer Content, or

b. Outages to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Kanda’s facilities or control.

11.2 Support

Kanda will provide Customer with e-mail support for Customer’s use of the Services during Kanda’s regular business hours. Customer agrees that Kanda is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware. Further support is specified in Appendix B - SLA

12. CONSULTANCY SERVICES

12.1 Kanda offers Customer Other Services related to the SaaS Services, including adapting or developing Customer Content. Any deliveries take place under the general terms in the FWA and separate PA for the specific Other Services.

13. WARRANTIES

13.1 Kanda shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner, which minimizes errors and interruptions in the Services and shall perform the any Services in a professional and competent manner.

13.2 Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kanda or by third-party providers, or because of other causes beyond Kanda reasonable control, but Kanda shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Kanda does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. except as expressly set forth in this section, the services and are provided “as is” and Kanda disclaims all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Kanda does not warrant or guarantee that the services will be virus-free, nor shall Kanda be liable for unauthorized alteration, theft or destruction of customers data or content.

13.3 Basis of the Bargain

Customer acknowledges that Kanda has set its prices and entered into this Agreement in reliance upon the Warranty Disclaimer and Limitation of Liability set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation of liability specified in this Agreement will survive and apply even if the warranty disclaimer or any limitation of remedies is found to have failed of its essential purpose. Notwithstanding the foregoing, nothing contained herein shall limit Kanda’s liability for its own willful or wanton conduct.

14. LIMITATION OF LIABILITY

14.1 Notwithstanding anything to the contrary, except for bodily injury of a person, Kanda and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory.

a. For error or interruption of use or for loss or inaccuracy or corruption of customer content or cost of procurement of substitute goods, services or technology or loss of business,

b. For any indirect, exemplary, incidental, special or consequential damages,

c. For any matter beyond Kanda’s reasonable control or

d. For any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to Kanda for the services (excluding other services) under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not Kanda has been advised of the possibility of such damages.

15. INDEMNIFICATION

15.1 Indemnification by Kanda

15.1.1 If a third party makes a claim against Customer that the Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Kanda negligence or willful misconduct has caused bodily injury or death, Kanda shall defend Customer and its directors, officers and employees against the claim at Kanda’ expense and Kanda shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Kanda, to the extent arising from the claim.

The foregoing obligations do not apply with respect to portions or components of the Services:

a. Not supplied by Kanda,

b. Made in whole or in part in accordance with Customer specifications,

c. That are modified by the Customer after delivery from Kanda,

d. Combined with other products, processes or materials where the alleged infringement relates to such combination,

e. Where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement,

f. Claims related to Customers Content, or

g. Where Customer’s use of the Service is not strictly in accordance with this Agreement.

15.1.2 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Kanda to be infringing, Kanda may, at its option and expense:

a. Replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality,

b. Obtain for Customer a license to continue using the Service, or

c. If neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

15.2 Indemnification by Customer

15.2.1 If a third party makes a claim against Kanda that the Customer Content or any portions or components of the Services as mentioned in clause 13.1.2 infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend and hold harmless Kanda and its directors, officers and employees against the claim at Customers expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

15.3 A party seeking indemnification under this section shall:

a. Promptly notify the other party of the claim,

b. Give the other party sole control of the defense and settlement of the claim, and

c. Provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

16. FORCE MAJURE

16.1 Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, failure or interruption or termination of a necessary third party service, pandemics, epidemic, acts of terrorism, or the stability or availability of the Internet or a portion thereof, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

17. PERSONAL DATA

17.1 In performing the Services, Kanda will comply with the Kanda Privacy Policy, which is available attached as Appendix: A. The Kanda Privacy Policy is subject to change at Kanda’s discretion.

17.2 Kanda reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide. Kanda subscribes to the United States/European Union Safe Harbor Principles and will only use third party providers that are in compliance of the Safe Harbor Principles.

17.3 Customer agree to provide any notices and obtain any consents related to Customers use of the services and Kanda’ provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of its data and Content.

18. GENERAL PROVISIONS

18.1 Assignment

Customer may not assign this Agreement or any right under this Agreement, without the consent of Kanda, which consent shall not be unreasonably withheld or delayed.

18.2 Customer Reference

Customer agree that Kanda may identify Customer as a recipient of Services and use Customers logo in sales presentations, marketing materials and press releases.

18.3 Statistical Information

Kanda may anonymously compile statistical information related to the performance of the Services for purposes of improving the Service, if such information does not identify Customers data or include Customers name.

18.4 Waiver

No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

18.5 Severability

If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible, the same effect as the original term, and the remainder of this Agreement shall remain in full force.

18.6 Entire Agreement

This Agreement (including all Orders, PA and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Terms and Conditions provided by Customers, whether implicit or explicit, are deemed null and void unless such terms and conditions are accepted explicit in writing by Kanda.

18.7 Governing Law

All disputes arising in connection with this Agreement will be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (the “ICC Rules”) by three arbitrators appointed in accordance with the ICC Rules. The place of arbitration will be Copenhagen, Denmark. The arbitrators will determine the matters in dispute in accordance with Danish Law excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The arbitration will be conducted in English. The award of the arbitrators will be the exclusive remedy between the Parties regarding any claims, counterclaims, issues, or accounting presented or pled to the arbitrators.

The foregoing shall be without prejudice to the right of any Party to seek injunctive relief or other equitable compensation before any court in any place where any unauthorized use of its Intellectual Property Rights or Confidential Information occurs or threatens to occur

Terms of Service