These terms of service (hereinafter “Terms of Service”) apply in connection with the customer’s (hereinafter “Customer”) subscription and use of the Software as a Service product CarAds, including any associated products, integrations, documentation and services in connection herewith (hereinafter “CarAds”), which is made available to the Customer by
Address: Gammel Sellingvej 1 K 1,
Denmark (hereinafter “CarAds ApS”).
Upon subscription and use of CarAds, these Terms of Services are accepted by the Customer and shall form a legally binding agreement between CarAds ApS and Customer (hereinafter “the Agreement”).
The Terms of Service are divided into the following two sections:
– Section A. Commercial and Legal Terms
– Section B. Terms for processing of personal data on behalf of Customer
For questions regarding the Terms of Service, please contact CarAds ApS at email@example.com.
CarAds is an online software platform, which build car dealer webpages and enable car dealers to promote their cars through online marketing platforms such as Facebook and Google.
Upon the Customer’s initial subscription to CarAds, CarAds ApS shall grant a royalty free, non-exclusive, non-transferable (including no right of sublicense) right to the Customer to use CarAds for a period of thirty (14) days (hereinafter “Trial License”) exclusively for the Customer’s internal business purposes in accordance with these Terms of Service.
Upon expiry of the Trial License, Customer’s access to CarAds shall automatically be removed and all data shall be deleted in accordance with CarAds ApS´s internal procedures, unless the Customer has purchased a commercial license, cf. 3.2.
If the Customer has purchased a commercial license (hereinafter “Commercial License”) to CarAds, CarAds ApS shall grant a time-limited, non-exclusive, non-transferable (including no right of sublicense) right to the Customer to use CarAds exclusively for the Customer’s internal business purposes in accordance with these Terms of Service.
The Customer’s right of use of the Commercial License is contingent upon the Customer’s continuously payment to CarAds ApS.
Customer’s right of use shall at all times be limited to the latest available version of CarAds, which is provided by CarAds ApS.
The Customer may copy documentation for internal use only if it is provided that CarAds ApS’s copyright notices and name is not removed from any such copy.
Except as expressly permitted by mandatory law, the Customer may not directly or indirectly
(i) sell, license, rent, lease, distribute, grant access to, transfer, subcontract or in any other way assign (in whole or in part) any right of use to CarAds on a stand-alone basis or as part of any collection, product or service of any kind;
(ii) modify, translate, decompile, reverse engineer, disassemble or otherwise attempt to derive CarAds or algorithms, user interface techniques or other ideas embodied in CarAds; or
(iii) tamper with, or attempt to circumvent or disable any license key to CarAds and/or any copy protection technology included in CarAds.
All rights, titles and interests in CarAds (including all intellectual property rights) shall remain the property of CarAds ApS and/or its respective affiliates and licensors.
Any ideas, know-how and any software or documentation developed by CarAds ApS in the course of providing any technical services, shall also remain property of CarAds ApS.
The Customer receives only a license to use CarAds as described in these Terms of Service.
CarAds ApS shall defend and pay any final non-appealable judgment to the extent arising from any third party claim against the Customer’s use of CarAds, (excluding any third party software) within the scope of these Terms of Service if CarAds infringes a copyright or patent or any other third party right enforceable in Denmark, provided that:
(a) the Customer notifies CarAds in writing within 30 (thirty) days of the claim;
(b) upon request CarAds ApS shall gain sole control of the defence and all related settlement negotiations; and
(c) upon request, the Customer provides CarAds ApS with all necessary assistance, information, and authority to assume the defence; reasonable out-of-pocket expenses incurred by the Customer in providing such assistance will be reimbursed by CarAds ApS. With respect to third party software, CarAds ApS will pass any indemnity to the Customer that it receives from the third-party licensor as the Customer’s sole remedy. (IKKE SIKKER PÅ VI SKAL HAVE DENNE DEL MED)
In the event that CarAds ApS is found to, or is believed by CarAds ApS to infringe copyright, patent or any third party right, CarAds ApS shall have the option, at its expenses, to:
(a) modify CarAds to be non-infringing; or
(b) obtain a license for the Customer to continue using CarAds or
(c) return the License Fee paid, and the Customer shall discontinue all use of CarAds.
CarAds may include open source software.
The copyright to the open source software is held by the copyright holders indicated in the copyright notices in the corresponding source files.
CarAds ApS disclaims any warranties, express, implied or statutory with respect to open source software, including but not limited to the implied warranties of non-infringement, merchantability and fitness for a particular purpose.
The Customer shall retain all rights, titles and interests in data, which the Customer stores in CarAds (hereinafter “Customer Data”) in accordance with these Terms of Service.
In the course of the Agreement, CarAds ApS and the Customer will gain access to confidential and internal information of the other, including, but not limited to, business strategies, information about customers, suppliers and employees, or employee data, prices, business structure (hereafter “Confidential Information”).
CarAds ApS and the Customer shall not disclose any Confidential Information to any third parties, however, Confidential Information may be disclosed to employees (including employees of affiliated companies) and subcontractors solely for the purpose to fulfil the Agreement.
This obligation of confidentiality continues indefinitely after the termination of the Agreement (for whatever reason).
CarAds is provided by CarAds ApS in a professional manner and quality conforming to best industry practices and will substantially conform, in all material aspects, to the specifications set in the product documentation.
CarAds ApS will assume full responsibility for the management of all its personnel and the acts and omissions of all sub-contractors in the provision of CarAds.
CarAds ApS will undertake commercially reasonable efforts to correct reported errors in CarAds in accordance with CarAds ApS’s maintenance policy. The Customer acknowledges that complex software is never free of software errors and security defects.
CarAds ApS does not give the Customer a guarantee that all errors will be corrected.
Except for the express warranties set out above, CarAds ApS makes no additional warranties or representations regarding CarAds to the Customer or to any other party.
All prices (“License Fee”) are quoted in Danish Kroner (DKK), exclusive VAT. All payments shall be made in advance in Danish Kroner (DKK)
It is possible to choose between Annual or monthly payments.
All invoices are payable within 8 days of receipt without any possibility for deductions.
CarAds ApS reserves the right to adjust the License Fee with 90 days of notice.
In the course of delivering CarAds to the Customer, CarAds ApS shall process personal data on behalf of the Customer (primarily store personal data) and as a result CarAds ApS is a processor of Customer in accordance with applicable data protection legislation.
CarAds ApS’s processing of personal data on behalf of the Customer shall be governed by CarAds ApS’s Data Processing Agreement (See section B. Terms for Processing of personal data on behalf of Customer). (SKAL VI OGSÅ HAVE EN SÅDAN SEKTION?)
CarAds ApS shall act as a controller in accordance with applicable data protection legislation (GDPR) for such personal data CarAds ApS process in its own interest in connection with the Agreement.
In doing so, CarAds ApS will take all necessary steps to ensure that such personal data is not accidently or unlawfully destroyed, damaged or misused and that no third parties will gain unauthorized access hereto. Furthermore, CarAds ApS will ensure that personal data is processed in accordance with all applicable legislation and principles.
The Trial License shall automatically expire after thirty (14) days, cf. Clause 3.1. Either Party shall be entitled to terminate the Commercial License for convenience by giving thirty (30) days’ written notice. The Customer shall not be entitled to receive any refund for License Fee paid in advance in connection with the termination of the Agreement.
The Customer’s subscription to CarAds shall not be subject to the statutory 14 days cancellation period.
CarAds ApS and the Customer may terminate the Agreement for breach by giving a written notice to the other party, and the breach is not remedied within forty (40) days from the receipt of the written notice of this matter.
Termination for breach shall only have future effect (ex nunc).
Upon expiry of the Trial License or termination of the Commercial License in accordance with Clause 9, the Customer shall no longer be granted any rights to use CarAds and access to CarAds shall be removed.
Prior to the expiry of the Trial License or termination of the Commercial License, the Customer shall be responsible for retaining all Customer Data from CarAds. CarAds ApS shall have no responsibility for any deletion of Customer Data.
CarAds ApS shall not be liable to the Customer for any claims, losses, damages, penalties, interest, fines, costs, liabilities, expenses and fees, including attorneys’ fees and expenses, including any indirect, incidental, economic, special or consequential losses, including loss of profits, revenue, data, or use, incurred by the Customer or any third party, whether in an action of the Agreement, tort or otherwise (Damages), even if CarAds ApS or any other related person has been advised of the possibility of such Damages.
Furthermore, CarAds ApS shall not be responsible for any Damages covered by insurance taken out by Customer or which are beneficial to Customer.
CarAds ApS’s total aggregate liability for any claims or Damages based upon, related to or arising out of the Agreement, or any transaction contemplated herein will in no event exceed the lesser of the License Fee actually paid for CarAds ApS or EURO 5.000.
The provisions regarding CarAds ApS’s limitation of liability allocate the risks under the Agreement and the corresponding License Fee paid by Customer to CarAds ApS.
If CarAds ApS is unable to provide CarAds under these Terms of Service as a result of force majeure, CarAds ApS cannot be held liable as a result of any damages, nor shall the Customer be entitled to terminate the Agreement.
Force Majeure is a condition over which CarAds ApS has no reasonable influence and which CarAds ApS cannot deal with within reasonable, commercial and practical measures.
For the avoidance of doubt war, terrorist attacks, failure of public electricity supply or telecommunication or computer viruses, hacking, trojans, spyware or similar in respect of CarAds shall constitute as force majeure.
In case of force majeure, CarAds ApS shall immediately notify Customer of the force majeure situation.
CarAds ApS may refer to the Customer as a reference for marketing, sales material and inquiries, including use of company name and logo of Customer.
General contact to CarAds ApS shall be sent to firstname.lastname@example.org.
In the event that any provision of these Terms of Service is held to be invalid or unenforceable, the remaining provisions of these Terms of Service will remain in full force and effect.
Survival after expiry or termination
Any provisions contained in these Terms of Service with respect to the following shall survive expiry or termination for any reason – Confidentiality, Limitation of Liability, Intellectual Property Rights and any other right or obligation, which by its nature, is reasonably expected to survive termination of this Agreement.
The waiver by CarAds ApS of any non-fullfillment or breach of these Terms of Service shall not constitute a waiver of any other or subsequent default or breach.
Except as provided below, this Agreement shall be governed and construed in all respects in accordance with the laws of Denmark, excluding its rules regarding choice of law (renvoi) and any disputes shall in first instance be settled by the Court of Aarhus (Retten i Aarhus).
In all cases the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
Notwithstanding the provisions of this clause CarAds ApS may seek immediate injunctive relief or equitable remedies for breaches of the intellectual property rights or confidentiality obligations.
In accordance with the General Data Protection Regulation (the “GPDR”) the Customer is the controller and CarAds ApS is the processor processing personal data on behalf of the Customer.
The GPDR requires that processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller.
The purpose of this Section B is to comply with the requirements of the GDPR and to establish the Parties’ rights and obligations in connection with the processing of personal data.
The Parties shall comply with the applicable data protection legislation in the form of the GDPR (the European Parliament’s and the Council’s regulation 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free move-ment of such information with subsequent amendments) as well as na-tional legislative in the member state or third country of the Customer or CarAds ApS (collectively referred to as the “Data Protection Legislation”). Customer are required to inform CarAds ApS without undue delay if Customer deems that the processing does not adhere to the requirements of na-tional legislation in the member state or third country where the Cus-tomer is based.
This Section B use the same definitions as stipulated in article 4 in the GDPR.
CarAds ApS will processes the personal data only on documented instructions from the Customer, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by national legislative to which CarAds ApS is subject; in such a case, CarAds ApS shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
This Section B shall together with the Agreement constitute the Cus-tomer’s instructs to CarAds ApS along with any written directions as issued by the Customer on ad hoc basis.
The nature and purpose of the processing, the type of personal data and categories of data subjects are as follows:
(1) DATA SUBJECTS (Customer’s employees, contractors, representatives and custom-ers.)
(2) CATEGORIES OF PERSONAL DATA (Name, Address, Phone, Email, Vehicle data, User Identifiers, API Logs, Cookies.)
(3) PROCESSING ACTIVITIES CarAds ApS (is a provider of a web-based application for data management.)
The purpose of processing of personal data by CarAds ApS is for the per-formance of the service pursuant to the Agreement. Thus, CarAds ApS will through the Customer’s use of the application collect, record, or-ganise, structure, store, change, retrieve, disclosure by transmis-sion, erase or otherwise make the personal data available to the Customer.
The Customer warrants that it has the necessary statutory authority in relation to the processing, including the transfer of the personal data to CarAds ApS, and that the data subjects have received the necessary information concerning the processing activities. The Customer also war-rants it has obtained the necessary permissions from relevant supervisory authorities as are required for the processing of personal data in accordance with the applicable Data Protection Legislation.
CarAds ApS shall immediately inform the Customer if, in CarAds ApS’s opinion, an instruction infringes the Personal Data Legislation.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Customer and CarAds ApS shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
(1) the pseudonymisation and encryption of personal data;
(2) the ability to ensure the ongoing confidentiality, integrity, avail-ability and resilience of processing systems and services;
(3) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical inci-dent;
(4) a process for regularly testing, assessing and evaluating the ef-fectiveness of technical and organisational measures for ensur-ing the security of the processing The purpose of processing of personal data by CarAds ApS is for the performance of the service pursuant to the Agreement. Thus, CarAds ApS will through the Customer’s use of the application collect, record, or-ganise, structure, store, change, retrieve, disclosure by transmission, erase or otherwise make the personal data available to the Customer.
In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.
CarAds ApS will ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
For the duration of the Agreement, CarAds ApS will:
(1) taking into account the nature of the processing, assist the Customer by appropriate technical and organisational measures, in-sofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III in the GDPR. CarAds ApS will notify the Cus-tomer within reasonable time, unless prohibited by applicable law, if CarAds ApS receives any requests or complaints pursuant to Chapter III in the GPDR; and
(2) assist the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 taking into account the nature of processing and the information available to CarAds ApS;
CarAds ApS may charge a reasonable fee for such requested assistance in ac-cordance with its standard hourly rates.
The Customer authorises CarAds ApS to use sub-suppliers (“Sub-Processors”) to assist with the delivery of services, provided that CarAds ApS:
(1) shall enter into an agreement with its Sub-Processors that im-poses on the Sub-Processors obligations regarding the processing of personal data that are at least as protective of personal data as those that apply to CarAds ApS hereunder, including requiring the Sub-Processors to only process personal data to the extent required to perform the obligations sub-contracted to them; and
(2) shall remain fully liable for all obligations subcontracted to, and all acts and omissions of, the Sub-Processors.
If CarAds ApS intends to add or replace any Sub-Processors, CarAds ApS will inform the Customer prior to such addition or replacement. The Customer shall then have the opportunity to object to such changes on reasonable grounds within ten (10) business days after being notified of the en-gagement of the Sub-Processor. If the Customer objects to a new Sub-Processor, CarAds ApS will, at CarAds ApS’s sole discretion, use reasonable efforts to make available the service without the use of the Sub-Processor (which may require alternative configurations or use of the service). If CarAds ApS is unable to make available such change, either Party may terminate the Agreement for convenience. CarAds ApS will refund to the Customer any prepaid fees covering the remainder of the term of the Agreement following the effective date of termination. The Customer shall not be entitled to any other remedies in connection herewith.
The Customer authorises CarAds ApS to transfer personal data to third countries, provided that CarAds ApS on behalf of the Customer shall enter into Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries pursuant to Commission Deci-sion 2010/87/EU of 5 February 2010 Countries (“Model Contract”).
CarAds ApS shall notify the Customer without undue delay after becoming aware of a personal data breach.
The notification referred to in clause 7.1 shall at least:
(1) describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects and personal data records concerned;
(2) communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
(3) describe the likely consequences of the personal data breach;
(4) describe the measures taken or proposed to be taken by the Customer to address the personal data breach, including, where ap-propriate, measures to mitigate its possible adverse effects.
Where, and in so far as, it is not possible to provide the information at the same time, CarAds ApS shall provide the information in phases without undue further delay.
On request from the Customer, CarAds ApS will make available to the Customer all information necessary to demonstrate compliance with the obligations laid down in this Section B and article 28 (3) in the GDPR and al-low for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer (subject to acceptable confidentiality obligations). CarAds ApS may charge a reasonable fee for such requested assistance in accordance with its standard hour-ly rates.
Notwithstanding the aforesaid in clause 8.1, the Customer accepts that any access to audits, including inspections, concerning the processing of personal data in Amazons cloud service (”Amazon Web Services”) will be subject to the current terms and conditions of Amazon. (SKAL DETTE RETTES TIL VORES SERVER LØSNING? ELLER FJERNES?)
This Section B automatically terminates when the Agreement terminates or expires, or on request from the Customer.
Upon the expiry or termination of the Section B for any reason, CarAds ApS will return or delete personal data at the choice of the Customer. If the Customer has not informed CarAds ApS whether the personal data shall be returned or deleted prior to the effective date of termination, CarAds ApS will delete the personal data.