Terms of Service for Delogue
Welcome to www.delogue.com. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “Delogue Services”).
When accepted by you (as defined below), these Terms form a legally binding contract between you and Delogue (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE DELOGUE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE DELOGUE SERVICES.
Delogue may, in its sole discretion, elect to suspend or terminate access to, or use of the Delogue Services to anyone who violates these Terms.
If you register for a free trial of the Delogue Services, the applicable provisions of these Terms will govern that free trial.
The original language of these Terms is English. Delogue may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.
Account: The primary means for accessing and using the Delogue Services, subject to payment of a Fee designated in the selected Plan;
Authorization: The set of rights and privileges on the Website assigned to a User by a Client;
Client: A legal entity represented by a natural or legal person who has accepted these Terms with Delogue;
Client Data: Files and any other digital data and information, which is subjected to the Delogue Services or otherwise inserted to the System by the Client (including the specific Users, Styles, Items, Suppliers, Tasks, Orders;
Content: Any data and information available through the Delogue Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;
Fee: Regular payment for using the activated Account;
Files: Documents of any kind (images, spreadsheets, text files, etc.) that are inserted into the System by the Client, and usually associated with a particular Style, Item or Order;
Free Trial: Temporary access for the purposes of trying out the Website, Platform and Delogue Services in accordance with any selected Plan without paying a Fee;
Guidelines: Additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the Delogue Services;
Delogue Materials: The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, data, and all other elements of the Delogue Services;
Delogue Services: The Website, System, Content, Platform and services and/or products available on or through the Platform;
Plan: Various criteria related to the use and functionality of the Delogue Services on which the Fee is based (functionalities, user-profiles, etc.);
Platform: The Delogue Client-supplier data management and collaboration platform;
Reseller: Third-party entity that (i) purchases Delogue Services from Delogue and resells such Delogue Services to Clients, (ii) bills such Clients directly and (iii) provides such Clients with customer service;
Special Terms: Any particulars, specifications, and conditions by which the parties have agreed to deviate from these Terms;
System: The integrated cloud computing solution for providing the Delogue Services, including applications, software, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;
License Period: Fixed time of the subscription e.g. January 1 to December 31;
User: A natural person granted with the Authorization to use the Account on behalf of a Client;
Website: The compilation of all web documents (including images, PHP and HTML files) made available via www.delogue.com or its subdomains or domains with identical names under other top domains and owned by Delogue.
2. Authority to Enter into These Terms with Delogue
The use of the Delogue Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.
The Terms are accepted as soon as one of the following occurs: The person has received the confirmation of the creation of the Account and necessary credentials from Delogue in order to log in to his/her/its Account; or for those Delogue Services and parts of the Website the use of which is not dependent on creating an Account, upon the moment of gaining access to such services. You may not, without Delogue’s prior written consent, access the Delogue Services (i) for production purposes, (ii) if you are a competitor of Delogue, (iii) to monitor the availability, performance or functionality of the Delogue Services or (iv) for other benchmarking or competitive purposes.
Once accepted, these Terms remain effective until terminated as provided for herein.
3. Modifications to Terms
Delogue reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the Delogue Services. Please check these Terms periodically for changes. Your continued use of the Delogue Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the Delogue Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Delogue will be governed by the Terms in effect at the time such dispute arose.
4. Our Responsibilities
4.1. Provision of Delogue Services
Delogue will (a) make the Delogue Services, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the Delogue Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the Delogue Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Delogue shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond Delogue’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, internet service provider failure or delay, or denial of service attack.
4.2. Protection of Client Data
Delogue will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Client Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, guidelines, training and measures for preventing access, use, modification or disclosure of Client Data by Delogue personnel except (a) to provide the Delogue Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User explicitly permit in writing.
The Services may be performed using equipment or facilities located in the European Union or the United States. Delogue’s US service providers are either Privacy Shield compliant or have executed Standard Contractual Clauses (as approved by the European Commission) that provide legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that are processed by Delogue’s customers when using the Delogue Service will receive from Delogue and its service providers located outside the EU an adequate level of protection within the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation).
BY AGREEING TO THESE TERMS, THE CLIENT GRANTS DELOGUE A GENERAL AUTHORIZATION IN THE MEANING OF ARTICLE 28 (2) OF REGULATION (EU) 2016/679 TO ENGAGE PROCESSORS FOR THE PURPOSES OF PROVIDING THE DELOGUE SERVICES AND INTERNAL PROCESSES. DELOGUE WILL INFORM THE CLIENT OF CHANGES IN SUCH PROCESSORS IN ACCORDANCE WITH THE PROCEDURE OF MODIFYING THESE TERMS AS STIPULATED IN SECTION 3 OF THESE TERMS.
LIST OF PROCESSORS:
Amazon Web Services – File storage and backup services in Ireland
Hetzner Online GmbH – File storage and backup services in Germany
Intercom – Messaging service hosted in the United States
Freshdesk – Customer support service hosted in the United States
Custify – Customer product usage service hosted in Europe
PipeDrive – CRM system tracking communication with customers hosted in EU (Germany)
Mailchimp – Email service hosted in the United States
Mailgun – Email service hosted in the United States
5. Using the Delogue Services
Access to the Service is available at https://my.Delogue.com. Upon entering into a contract with the Client, Delogue will provide the Client with a username and password for accessing the Service.
Access to the Service is only available to the Client and the Users to whom the Client grants access, subject to the Client making the applicable payments for the Service under these Terms.
Usernames and passwords are personal and are to be considered part of Confidential Information. The Client is at all times fully liable for all acts and omissions by Users to whom the Client has granted access and agrees to indemnify Delogue for all claims and losses related to such acts and omissions.
5.1 Establishing an Account
Certain features, functions, parts or elements of the Delogue Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
• Complete the sign-up form on the Web Site or alternative process provided by a Reseller if access to the Delogue Services is purchased from a Reseller; and accept these Terms by clicking “Sign up” or other similar buttons.
• Each Client may have only one Account. If several persons need to use an Account on behalf of the Client, the Client must designate such persons as Users.
• Each User shall be subject to the restrictions set forth in these Terms.
If the Client has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of the Client when using the Account. Delogue is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, Delogue may, in its discretion, request additional information or proof of the person’s credentials. If Delogue is not certain if a User has been granted Authorization, Delogue may, in its sole discretion, prevent such User from accessing the Delogue Services.
A User may be associated with multiple Clients and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.
A User is not allowed to share an Account with other persons including sharing private login information.
The Client and any User associated with an Account must provide Delogue with true, accurate, current, and complete information about the Client, Users or Account and keep it up to date.
5.2 Logging into an Account
Delogue shall provide Client users with a link to activate initial login to its Account unless the Client uses the single sign-on feature or another service to log in. At the initial login the User is forced to provide a personal password. These “Login Credentials” (username and password) must not be used by multiple persons. If the Client has designated several Users, each User will be provided with separate Login Credentials. The Client and each User are responsible for keeping confidential all Login Credentials associated with an Account. The Client must promptly notify Delogue:
• Of any disclosure, loss or unauthorized use of any Login Credentials;
• Of a User’s departure from the Client’s organization;
• Of a change in a User’s role in the Client’s organization;
• Of any termination of a User’s right for any reason.
5.3 Termination of Account
The Client may terminate these Terms at any time as provided in Section 17.
The use of an Account is subject to a Fee. Upon sign-up for an Account, the Client must select a Plan including License Period. Different rates apply to different Plans. The applicable Fee is charged in advance at annual payment intervals unless agreed otherwise between parties. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Client (i) did not use an activated Account, (ii) used it only partially, (iii) deactivated the Account or (iv) terminated these Terms during an ongoing payment interval.
If, after signing up, the Client decides to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.
The License Period shall automatically be extended for a successive period subject to the same termination and extension provisions as those applicable to the initial period, unless otherwise agreed between the parties. If either of the parties does not wish to extend the validity of the agreement, the other party shall be given notice hereof in writing not less than thirty (30) days prior to the expiry of the current License Period.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law unless stated otherwise herein. Client is solely responsible for the payment of such taxes, levies or duties.
5.5 Changing Plans
Any Client has the right to upgrade or downgrade a current Plan at renewal of a License Period by selecting a new Plan among the collection of Plans determined by Delogue. In such an event, the Client will automatically be charged a Fee for the next payment interval with the rate stipulated in the new Plan. A downgrading of the current Plan may cause the loss of features or capacity of the Account, as well as the loss of Client Data.
5.6 Free Trial
A new Client may be offered a Free Trial. The Client is not required to provide any payment information during the period of Free Trial. When the period of Free Trial has expired, the Account will automatically be deactivated. In order to prevent deactivation or to reactivate the Account, the Client is required to sign an Agreement to select a suitable Plan and pay the initial Fee. If the Client does not pay the Fee within 2 weeks as of the expiry of the Free Trial, Delogue has the right to permanently delete the Account, including all Client Data therein.
The following provisions are applicable only if you purchase access to the Delogue Services directly from Delogue. If a Client purchases access to the Delogue Services through a Reseller, the payment terms are set forth in the agreement with the Reseller.
Payment for Services under a Delogue Account shall be confidential and not to be shared with third-parties. All prices are exclusive of taxes (VAT or otherwise), which may or may not be added to the price, depending on applicable law and the legal residence of the Customer.
Payment shall always be made in advance for the entire term of Service unless specifically agreed otherwise.
Delogue is entitled to adjust the prices, functionality, and number of Users for the Service from time to time. Adjusted prices shall take effect upon any subsequent term of Service.
Payment shall be made automatically by invoice as noted on the Service or as otherwise instructed by Delogue from time to time.
In case of non-payment for any reason or any violation of the Agreement, Delogue shall be entitled – without liability – to immediately close/inactivate Customer’s access to the Service and the service plan in question. Furthermore, Delogue is entitled to receive interest (at 2% per month) on any outstanding amount due.
In case of suspension of Account, Delogue reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. The Client agrees and acknowledges that Delogue has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
7. Client data
7.1 Uploading Client Data to Platform
If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users) whether posted and/or uploaded by you or made available on or through the Delogue Services by Delogue. By uploading Client Data to the Platform, the Client authorizes Delogue to process the Client Data. The Client is responsible for ensuring that:
• The Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data that violates the terms of these Terms, the rights of Delogue, other Clients or Users, or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, defamatory, hateful or otherwise unlawful;
• And the Client and all of the Users associated with the Account have the necessary rights to use the Client Data, including to insert it into the Platform and process it by means of the Account.
7.2 No Guarantee of Accuracy
Delogue does not guarantee any accuracy with respect to any information contained in any Client Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the Delogue Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that the Client, and not Delogue, is entirely responsible for all Client Data that is uploaded, posted, transmitted, or otherwise made available through the Delogue Services, as well as for any actions taken by Delogue or other Clients or Users as a result of such Client Data.
7.3 Unlawful Client Data
Delogue is not obliged to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of Delogue or if there is a reason to believe that certain Client Data is unlawful, Delogue has the right to:
• Notify the Client of such unlawful Client Data;
• Deny its publication on the Web Site or its insertion to the System;
• Demand that the Client bring the unlawful Client Data into compliance with these Terms and applicable law;
• Temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.
If Delogue is presented with convincing evidence that the Client Data is not unlawful, Delogue may, at its sole discretion, restore such Client Data, which was removed from the Website or Account or to which access was restricted.
In addition, in the event Delogue believes in its sole discretion Client Data violates applicable laws, rules or regulations or these Terms, Delogue may (but has no obligation to) remove such Client Data at any time with or without notice.
Delogue as the data processor will assist the Client as the data controller in meeting the Client’s obligations under Regulation (EU) 2016/679, providing subject access, and allowing data subjects to exercise their rights under Regulation (EU) 2016/679.
7.4 Compelled Disclosure
Delogue may disclose a Client’s confidential information to the extent compelled by law to do so. In such instance, Delogue will use commercially reasonable efforts to provide the Client with prior notice of the compelled disclosure (to the extent legally permitted) and the Client shall provide reasonable assistance, at its cost, if the Client wishes to contest the disclosure. If Delogue is compelled by law to disclose the Client’s confidential information as part of a civil proceeding to which Delogue is a party, and the Client is not contesting the disclosure, the Client will reimburse Delogue for its reasonable cost of compiling and providing secure access to that confidential information.
8.1 Use of the Delogue Services
Subject to these Terms, and the payment of the applicable service Fee, Delogue grants the Client and its authorized Users a non-exclusive, non-transferable, non-sub-licensable license to use the Delogue Services to:
• Collect, store and organize Client Data, such as add new Styles and Items, invite Suppliers, generate reports based on Client Data, add Sample Requests and monitor their evolvement through the status;
• Add new Users and grant them Authorizations, assign Tasks to a particular User;
• Modify and delete Client Data;
• Customize the standard features of the Delogue Services;
• Receive reasonable help and guidance from Delogue regarding the use of the Delogue Services.
8.2 Technical Support
Delogue shall provide reasonable technical support to Client and its authorized User at the reasonable request of the Client. Delogue shall respond to inquiries of support from a Client utilizing the contacts set forth below as soon as reasonably possible. Responding to inquiries from Clients and Users who have accepted these Terms but do not have an Account may be less expedient or may not occur at all.
The contacts for all inquiries of support are:
• Built-in notification application on the Web Page, or
• E-mail: email@example.com
Notwithstanding the foregoing, if you purchased access to the Delogue Services from a Reseller, then first-line technical support will be provided by the Reseller and not by Delogue.
8.3 Modifications to Service
Delogue reserves the right to modify the Delogue Services or any part or element thereof from time to time without prior notice, including, without limitation:
• Rebranding the Delogue Services at its sole discretion;
• Ceasing providing or discontinuing the development any particular Delogue Service or part or element of the Platform temporarily or permanently;
• Taking such action as is necessary to preserve Delogue’s rights upon any use of the Delogue Services that may be reasonably interpreted as violation of Delogue’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, the Client may be notified of such modifications when logging in to the Account. Modifications, including a change in applicable rates for the Delogue Services, will become effective thirty (30) days before the effective date of such modification.
If the Client does not accept the modification, the Client shall notify Delogue or Reseller (if the Client purchased access to the Delogue Services from a Reseller) before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Client’s continued use of the Delogue Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Delogue shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Delogue Services, or any part or element thereof.
8.4 Service Level
Delogue will at all times reasonably attempt to achieve the highest possible availability and shortest possible access time of the Service, but no warranties of any kind, regarding any specific availability or time of access are granted. The Service is hosted either by Delogue or a subcontractor of Delogue’s choice; presently by Amazon Web Services. All data stored as part of the Service is backed up on a regular basis. If a Client with a paid service plan experience loss of data, Delogue will with reasonable effort attempt to restore data from the most recent working backup; provided, however, Delogue gives no warranties with respect to recovering or restoring any lost Client data.
9. Data Processing Contract
For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms constitute the data processing contract between the Client as the data controller and Delogue as the data processor. The Client hereby instructs Delogue to process the data as described in these Terms.
9.1 Subject matter and nature of processing
DELOGUE PROVIDES THE PLATFORM WHERE THE CLIENT, AS THE DATA CONTROLLER, CAN COLLECT, STORE AND ORGANIZE THE PERSONAL DATA OF DATA SUBJECTS DETERMINED BY THE CLIENT. THE PLATFORM IS DESIGNED TO WORK AS A PLM, COMMUNICATION AND COLLABORATION PLATFORM BUT, TO THE EXTENT NOT REGULATED BY THESE TERMS, THE CLIENT DECIDES HOW HE/SHE USES THE PLATFORM AND THE DATA RECORDED.
Delogue will process data on behalf of the Client until the termination of the Delogue Services in accordance with these Terms. Upon termination, Delogue will store the Client’s data for a period of at least twenty-four months, should the Client wish to reopen the Account to resume the use of the Delogue Services or to export Client Data, unless instructed otherwise by the Client.
9.3 Parties’ rights and obligations
The Client’s rights and obligations regarding Client Data are provided in sections 4 through 10 of these Terms. Delogue ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. Delogue takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679. Delogue undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Client as the data controller.
10.1 Prohibited Activities
Client and its Authorized Users may use the Delogue Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
• Use the Delogue Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
• Copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the Delogue Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that Delogue is not permitted by that applicable law to exclude or limit the foregoing rights;
• Use the Delogue Services or any part or element thereof unless it has agreed to these Terms.
10.2 Certain Uses Require Delogue Consent
The Client or any User may not, without Delogue’s prior express written consent (e-mail, fax, Skype, etc.):
• Sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the Delogue Services available in whole or in part to any third persons unless such third person is another authorized User of the same Client;
• Use the Delogue Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
• Use the Delogue Services or any part or element thereof by means of programs that send them automatic inquiries or requests, unless such program has been made available by Delogue;
12. Intellectual Property Rights
12.1 Delogue’s Intellectual Property Rights in the Delogue Services
The Delogue Services, Delogue Materials, Delogue trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Delogue and its third-party vendors and hosting partners. The Delogue Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Delogue, its affiliates, and licensors retain all right, title and interest in such Delogue Services, Delogue Materials, Delogue trade names and trademarks, and any parts or elements.
Your use of the Delogue Services and the Delogue Materials, and any parts or elements does not grant to you any ownership, right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the Delogue Materials is strictly prohibited unless you have received the express prior written permission from Delogue or the otherwise applicable rights holder. Delogue reserves all rights to the Delogue Services, the Delogue Materials and the Delogue trade names and trademarks not expressly granted in the Terms.
12.2 Content Owned by Delogue
Subject to these Terms and the payment of the applicable service Fee, Delogue grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You explicitly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the Delogue Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the Delogue Services or as otherwise permitted by applicable law.
12.3 Client Data
Delogue may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. Delogue may not otherwise use or display Client Data without Client’s written consent. Delogue respects your right to exclusive ownership of your Client Data. Unless specifically permitted by you, your use of the Delogue Services does not grant Delogue the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by you or stored in your Account for Delogue’s commercial, marketing or any similar purpose. The Client expressly grants Delogue the right to use and analyze aggregate system activity data associated with use of the Delogue Services by Client and its Users for the purposes of optimizing, improving or enhancing the way the Delogue Services operate, and to create new features and functionality in connection with the Delogue Services in the sole discretion of Delogue.
The client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through the Delogue Service. In connection with Client Data, the Client affirms, represents, and warrants that: (i) the Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize Delogue to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Client Data in a manner consistent with the intended features of the Delogue Services and these Terms, and to grant the rights and license set forth in Section 11.3(a), and (ii) Client Data, Delogue’s or any Delogue Licensee’s use of such Client Data pursuant to these Terms, and Delogue’s or any Delogue Licensee’s exercise of the license rights set forth in Section 11.3(a), do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any Fees and/or royalties by Delogue to any third party for the performance of any Delogue Services the Client has chosen to be performed by Delogue or for the exercise of any rights granted in these Terms, unless the Client and Delogue otherwise agree.
If the Client or a User provides Delogue with any comments, bug reports, feedback or modifications for the Delogue Services (“Feedback”), Delogue shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Delogue Services. The Client or User (as applicable) hereby grants Delogue a perpetual, irrevocable, non-exclusive, royalty-free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose.
13. Third-Party Sites, Products, and Services
The Delogue Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. Unless otherwise specifically and explicitly indicated, Delogue does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Delogue makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community is provided by third parties and not developed or maintained by Delogue. By using any community marked code or libraries in your software development, you acknowledge and agree that Delogue is not in any way responsible for the performance or damages caused by such community provided code or library.
Delogue may sell, assign or transfer its rights, duties and obligations under these Terms without the prior written consent of the Client to any successor(s) of all or substantially all of Delogue’s respective assets, provided that the intended assignee agrees in writing to be bound by the Terms. No assignment shall relieve the assigning party of any obligations accrued prior to the date of assignment. Any purported assignment in violation of the foregoing shall be null and void ab initio.
15. Disclaimers; No Warranty
UNLESS OTHERWISE EXPLICITLY STATED BY DELOGUE, THE DELOGUE SERVICES, THE DELOGUE MATERIALS, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELOGUE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DELOGUE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPLICITLY STATED BY DELOGUE, DELOGUE AND ITS AFFILIATES DO NOT WARRANT THAT THE DELOGUE SERVICES AND ANY CONTENT, CLIENT DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELOGUE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE DELOGUE SERVICES AND ANY CONTENT, CLIENT DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE DELGOUE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPLICITLY STATED BY DELOGUE, DELOGUE AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE DELOGUE SERVICES, DELOGUE MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless Delogue and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Delogue Services, Delogue Materials, representations made to Delogue, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Delogue reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Delogue, and you agree to cooperate with such defense of these claims.
17. Limitation of Liability
17.1 No Liability
Delogue shall not be liable to the Client or User for any consequences resulting from:
• Any modifications in these Terms, calculation and rates of Fees, the Delogue Services, Delogue Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other types of unavailability of the Delogue Services or Delogue Material;
• Deletion of, corruption of, or failure to store any Client Data;
• Use of Client Data by the Client or any of the Users associated with the Account;
• Upgrading or downgrading the current Plan;
• Any disclosure, loss or unauthorized use of the Login Credentials of the Client or any authorized User due to the Client’s failure to keep them confidential;
• The Client’s use of the Account or the Delogue Services by means of browsers other than those accepted or supported by Delogue;
• The application of any remedies against the Client or authorized Users by Delogue, for example if the Client or User has committed a crime or conducted a breach of applicable law by using the Delogue Services or any part or element thereof;
• The differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the Delogue Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
• Delogue’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, Delogue and its affiliates shall not be liable to the Client for any claim by any User, person, Organization or third persons against the Client arising out of the Client’s failure to:
• Provide Delogue with accurate information about the Client, Users or Account;
• Notify Delogue of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
• Ensure the lawfulness of the Client Data;
• Obtain the necessary rights to use the Client Data; or
• Abide by any of the restrictions described in these Terms.
17.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DELOGUE AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE DELOGUE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.
17.3 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
18. Termination of These Terms
Delogue Accounts are prepaid and are non-refundable. DELOGUE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OF USE OF THE SERVICE. You may cancel your Delogue Account at any time, which will be effective immediately. If you wish to cancel your Delogue Account, you may send an email to firstname.lastname@example.org. Please note that you will not be issued a refund for any charged and paid fees. It is your responsibility to keep your contact and payment information current.
These terms shall commence on the date of availability of the Services and will remain in effect for an initial term of contract as stipulated online at the Service (the “Initial Term”). Upon the expiration of the Initial Term, these Terms will automatically renew for successive renewal terms equal in duration to the Initial Term at Delogue’s then current Fees, if applicable, unless Client specifically terminates the Services online on Delogue’s website.
Upon termination – regardless of the reason – Delogue shall be entitled to delete any data stored by the Client under the applicable paid service plan, after having given the Client at least thirty (30) days notification of the impending deletion.
You agree and acknowledge that Delogue has no obligation to retain the Client Data, and may delete such Client Data, more than thirty (30) days after termination of this Agreement. If the Client and/or User require Delogue assistance in obtaining stored data, Delogue is entitled to request payment, at Delogue’s standard rates for such work.
If either party is in material breach of these Terms, the other party is entitled to terminate these Terms for cause without notice, if after having given the breaching party a written notice of no less than ten (10) days if the breaching party has not within such notice remedied the breach to the satisfaction of the other party.
For the avoidance of doubt, any termination by either of the parties or the expiry of the term of these Terms shall only have effect for the future and shall have no retroactive effects. Notwithstanding the above, the rights and obligations in Sections 6, 12, 14, 15, 16 and 17 shall stay in full force and effect after said expiry or termination of the Terms.
You agree and acknowledge that Delogue has no obligation to retain the Client Data, and may delete such Client Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding Fees, and such breach has not been cured within thirty (30) days notice of such breach.
19. Who You Are Contracting With
Delogue with whom the Client is contracting depends on the domicile of the Client. Delogue determines the domicile of the Client based on the country indicated in the billing address of the User who concludes these Terms on behalf of the Client. During the Free Trial, Delogue determines the domicile of the Client based on the location indicated in the IP-address of the User who concludes these Terms on behalf of the Client. By accepting these Terms, the Client is contracting with Delogue.com ApS, Sorøgade 6, 2100 Copenhagen Ø, Denmark, email@example.com
19.2 Governing Law and Jurisdiction
This Agreement shall be governed by Danish law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the court located in Copenhagen, Denmark.
This Agreement comprises the entire agreement between you and Delogue and supersedes any and all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between us regarding the subject matter contained herein.
20. General Provisions
20.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Client and Delogue, and the Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties. The validity and enforceability of the remaining Terms, conditions or provisions, or portions of them, shall not be affected.
20.3 Entire Agreement
These Terms are the entire agreement between the Client and Delogue regarding the Client’s use of the Delogue Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
The client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Delogue’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (ii) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (ii) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees.
20.5 No Waiver
Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii), except for notices of termination or an indefinable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.
20.7 Force Majeure
Delogue is not to be responsible for situations or conditions which fall under force majeure, including but not limited to war, riot, uprising, strike, lock-out, fire, flooding, natural disasters, monetary restrictions, import/export embargoes, interruption of electronic traffic, interruptions or breakdowns in energy or communication supplies, attacks of computer viruses, attacks by hackers and force majeure of subcontractors.
Last revision: February 3, 2020.