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General Terms and Conditions

Here are our General Terms and Conditions

General Terms and Conditions (GTC)

These Komfo General Terms and Conditions (the “GTC”), including the Service Level Agreement (the “SLA”) and Data Processing Agreement (the “DPA”), which are incorporated herein by reference, are between the customer signing an Order (“Customer”) and Komfo (defined below) (referred to herein individually as a “Party” or collectively as the “Parties”) and are effective as of the date of execution, by both Parties, of the Order being entered into which incorporates these GTC (the “Effective Date”). The term “Agreement” as used herein means these GTC, as may be amended from time to time in accordance with its terms, and any Order incorporating these GTC by reference and signed in writing by the Parties. By signing an Order, Customer acknowledges and agrees as follows:

1.         Recital

1.1.       “Komfo” means Komfo ApS, Vesterbrogade 6D, 9., 1620 Copenhagen V, company registration number 32 66 34 78.

1.2.       “Fee(s)” means any charges paid or owing under the Agreement including fees for the Services.

1.3.       “Order” means a signed written agreement entered into pursuant to these GTC, where each Order constitutes a separate legal agreement which relates to a particular transaction for Services.

1.4.       “Services” means the professional services, support and any related Materials as specified in an Order and provided by Komfo to Customer pursuant to this Agreement.

1.5.       “Materials” means any document, report, code, assessment, material, video, simulation, product information, feature and/or software that is provided to Customer pursuant to this Agreement

1.6.       To the maximum extent permitted by applicable law, these GTC apply in all matters between Customer and Komfo, regardless of which social media the Services are delivered or used upon, unless otherwise expressly agreed by the Parties in writing.

2.         Contracting parties and contractual basis

2.1.       Each Party warrants that it has the full right, power and authority to enter into this Agreement and to carry out its obligations under this Agreement.

2.2        These GTC govern the general terms and conditions for Komfo’s delivery of the Services, while the Order and the SLA specify the specific Services ordered by the Customer. In case of any conflict between the provisions of these documents, the provisions of the Order shall prevail.

3.         License and intellectual property rights

3.1.       Komfo grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable license to use the Services for Customer’s internal business purposes.

3.2.       Neither Party is transferring ownership to any intellectual property in any manner under this Agreement. Komfo expressly reserves any and all rights to the Services not specifically granted under Section 3.1.

4.         Komfo’s obligations

4.1.       Komfo shall provide the Services to Customer.

4.2.       For the duration of the Agreement, Komfo will ensure that the Services can be used on the relevant social platform (e.g. Facebook and Instagram) for which the Services are designed.

4.3.       Notwithstanding the foregoing, if such relevant social platform ceases to exist, loses its market relevance, is substantially altered or if impossibility occurs, for instance as a result of inaccessibility of the platform, Komfo shall in all respects be made free from liability and may terminate this Agreement without responsibility. Where Komfo terminates under this section, Customer shall receive a pro-rated refund of any paid Fees for the then-existing annual period at the time of termination.

4.4.       The Services will support the newest versions of the leading browsers – Chrome, Firefox, Safari and Microsoft Edge.

4.5.       Komfo’s obligations regarding availability of the Services and provision of Support, respectively, shall apply as set forth in the SLA.

5.         Customer obligations

5.1.       For the duration of the Agreement, Customer will:

5.1.1.    provide the information necessary to enable Komfo to provide Customer with the Services;

5.1.2.    ensure that the data and information that Customer provides to Komfo, including that with a view to be made public, or which Customer itself publishes through the Services, at all times complies with applicable law (e.g. marketing and privacy law), including the law of any jurisdiction which Customer’s data and information is aimed at

6.         Data Processing

6.1.       To the extent that Komfo processes any Personal Data (as that term is defined in the DPA) on behalf of Customer: (i) Komfo shall be the “data processor” and Customer shall be “data controller” under applicable law; and (ii) the Parties’ respective obligations for Personal Data are set forth in the DPA.

7.         Ordering, Pricing and Payment
7.1.       An order of Services is made under an Order, and the relevant Fees, and the associated payment terms, are as set forth therein. In the event of late payment, Customer shall pay default interest to Komfo calculated at the rate of two percent (2%) per month on the total amount due until payment has been completed.

7.2.       In the absence of timely payment, Komfo reserves the right to withhold the Services.

7.3.       Except with respect to additional purchasing by Customer under an Order, pricing under such Order may not be increased during the Minimum Commitment Period. At the start of a new Renewal Period (as that term is defined in the Order), Komfo may increase the then-current Annual Fee (as that term is defined in the Order) by up to two percent (2%).

8.          Limitation of liability

8.1.       To the extent not prohibited by applicable law, Komfo shall not be liable to Customer or any third party for any lost profits, revenues, or data, financial losses or any indirect, special, consequential, exemplary or punitive damages arising out of or related to this Agreement under any legal theory, even if Komfo has been advised of, knows of, or should have known, of the possibility of such damages.

8.2.       Komfo’s total liability under this Agreement shall be limited to the amount paid by Customer for the Services provided hereunder during the twelve (12) months immediately preceding the date on which the claim at issue accrued.

8.3.       Komfo will not be liable for delays or failures in performance of the Services caused by forces beyond its control (including but not limited to disruption of the Internet or any act or omission made by a third party e.g. Facebook) or any force majeure event.

8.4.       Komfo is not liable for the legality of the content Customer provides to Komfo with a view to publication and Customer shall indemnify Komfo from any claim or liability that may arise against Komfo in this regard.

9.         Termination

9.1.       A Party may terminate the Agreement with immediate effect, if:

9.1.1.     the other Party fails to correct a breach of a material term of this Agreement within 30 days after receipt of written notice of the material breach;

9.1.2.     a force majeure event has lasted for 30 days from the date the other Party has announced that force majeure has occurred; or

9.1.3.     any assignment is made by the other Party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of the other Party’s property, or the other Party files a voluntary petition under applicable bankruptcy laws or such a petition is filed against the other Party and is not dismissed within 60 days.

9.2.       Komfo is entitled to terminate the Agreement without notice upon:

9.2.1.     Customer’s non-payment of due payments;

9.2.2.     Customer’s misuse of the intellectual property rights of Komfo and/or third parties, including copyright, design rights, patent rights, utility model rights, and trademarks; or

9.2.3.     Customer’s publication of material in violation of applicable law.
9.3. Upon the termination of this Agreement, all use of the Services must immediately cease and those provisions of this Agreement which by their nature are intended to survive, including without limitation Sections 8 (Limitation of Liability) and 10 (Confidentiality) and this section (Termination), as well as any outstanding obligations to pay any Fees, shall survive such termination of this Agreement.

10.        Confidentiality

10.1.      The term “Confidential Information” means all information disclosed in written, oral, electronic, visual or other form by either Party (each a “Disclosing Party”) to the other Party (“Recipient”) and either (a) marked or designated as “confidential” or “proprietary” at the time of disclosure or (b) disclosed in circumstances under which it ought to be treated as confidential by Recipient. The Parties agree that the content of this Agreement, except for the GTC, are Confidential Information. Confidential Information does not include information that (i) is or become a matter of public knowledge through no fault of the Recipient, (ii) was rightfully in the Recipient’s possession free of any obligation of confidence, (iii) was rightfully disclosed to Recipient by a third party without restriction as to use or disclosure, or (iv) is independently developed by Recipient without use of or reference to Disclosing Party’s Confidential Information. Recipient shall hold the Confidential Information received from the Disclosing Party in confidence and shall not, directly or indirectly, disclose it to any third party or entity. Recipient will limit use of and access to the Disclosing Party’s Confidential Information to Recipient’s employees and independent contractors who have (a) a need to know, (b) been notified that such information is Confidential Information, and (c) entered into binding confidentiality obligations no less protective of the Disclosing Party than this Agreement. Recipient will protect the Disclosing Party’s Confidential Information by using the same degree of care as Recipient uses to protect its own confidential or proprietary information of a like nature (but not less than a reasonable degree of care). Recipient shall promptly notify the Disclosing Party upon learning of any misappropriation or misuse of Confidential Information disclosed hereunder. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information pursuant to any statutory or regulatory authority or court order, provided that Recipient provides the Disclosing Party prompt prior notice (to the extent legally permitted to do so), and the scope of such disclosure is limited to the extent possible.

11.        Changes to the Agreement

11.1.      Customer may adjust the Services under the following conditions:

11.1.1.    Customer may reduce the Services only after the expiry of the Minimum Commitment Period set forth in the applicable Order. The notice period for the requested alteration is equal to the termination notice period set forth in the applicable Order.

11.1.2.    Customer may increase the number and/or extent of Services at any time.

11.2.      In accordance with the Agreement, Komfo will handle a maximum monthly ad spend (e.g. Facebook advertising spend) booked by Komfo’s social ads tool. Customer’s current limits are outlined in the Order(s).

11.2.1.    In the event that Customer reaches its authorised monthly limits under the Agreement, Komfo will contact Customer and the Parties will act in good faith to negotiate an amendment to the Agreement appropriate to Customer’s needs. Komfo will under no circumstances charge Customer any additional fees without Customer’s express written consent to the fees associated with an increase of Customer’s ad spend limit.

12.        Assignment

12.1.      Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, not to be unreasonably withheld, except that Komfo may assign this Agreement, without Customer’s consent, to its successor in the event of a merger, acquisition or sale of all or substantially all of its assets, or to an affiliate that agrees to assume Komfo’s obligations under this Agreement. Any other purported assignment shall be void and of no force or effect. Subject to the provisions of this Section, this Agreement shall be binding upon the successors and assigns of the Parties..

13.        Entire Agreement

13.1. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties. Any conflicting term or condition included in any Customer invoice, purchase order or other document rendered pursuant to this Agreement is of no force or effect. No action by Komfo (including, without limitation, receipt of payment of any such invoice, or acceptance of any purchase order, in whole or in part) shall be construed as making any such term or condition binding on Komfo. For the avoidance of doubt, where a third party delivers services directly to Customer in connection with the Services, any terms and conditions applying to such third party services shall not be binding on Komfo.

14.        Governing law and venue

14.1.      This Agreement shall be governed by, and exclusively construed in accordance with, the laws of The Kingdom of Denmark, without recourse to its conflict of laws principles. Any dispute, controversy or claim arising out of or in connection with this Agreement or the breach, termination or invalidity thereof shall be settled by the Copenhagen City Court.

Komfo’s GTC

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