Betingelser

    Structure

    These Terms and Conditions apply to any use of Real-Time LCA Software owned by NTI A/S, Danish business reg. no. 12252528, Lejrvej 15, 3500 Værløse, Denmark, ("NTI"), including the various modules and versions ("Real-Time LCA Software").

    The Purchase Order is governed by and subject to these Terms and Conditions. These documents collectively constitute the agreement (the "Agreement") between NTI and the Customer. NTI and the Customer are collectively referred to as the "Parties" and individually as a "Party".

    Terms not defined in this clause 1 have the meaning ascribed to them in clause 2.

    Definitions

    "Applicable Laws" means all applicable laws, regulations, requirements or orders which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory or administrative functions.

    "Authorized Users" means those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services in accordance with the Subscription described in the Purchase Order.

    "Confidential Information" means any information concerning NTI and the Customer that may reasonably be considered as proprietary or confidential, whether in a tangible or intangible form, and whether or not designated by a Party as proprietary or confidential, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data, software, source codes, valuations, costs, rates, and prices and any other information of a proprietary or confidential nature relating to the disclosing Party or its business, as well as any information created or derived from any such information, irrespective of disclosing medium and storage.

    "Customer" means you, the legal entity who has entered into an Agreement for certain Services by signing and accepting the Purchase Order.

    "Customer Data" means data inputted by the Customer, Authorized Users, or NTI on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services and any data generated by, or derived from, the Customer's use of the Services.

    "Consequential Loss" – means, whether or not foreseeable at the date of this Agreement, any:

    • special, exemplary, incidental, punitive, consequential or indirect loss or damage; and
    • any loss of earnings, loss of profit or anticipated profit and loss of production and/or deferral of production, loss of product, loss of revenue, losses arising out of any business interruption, loss of anticipated cost savings, loss related to third party claims, loss or corruption of any Customer Data and the consequences thereof, loss of use (i.e. spread cost) in each case whether direct or indirect.

    "Documentation " means the documents, including the Service Description made available to the Customer by NTI which sets out a description of the Services, including maintenance and support, and the user instructions for the Services.

    "Effective Date" has the meaning set out in the Purchase Order.

    "IPR" means intellectual property rights of any kind existing now or in the future anywhere in the world, whether registered or not, and all applications, renewals, extensions of, and rights to apply for the same, including without limitation, patents, trademarks, design rights, copyright, publishing rights, moral rights, database rights, service marks, logos, business names, domain names, trade names, and other rights in goodwill, know-how, trade secrets, and other protected material, each in any form or format, including without limitation any and all intellectual property rights in and to any inventions, new technology, reports, data, data structures, databases, calculations, documents, drawings, sketches, specifications, equipment, algorithms, heuristics, computer programs, and source codes for software and all other intellectual property rights, and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection.

    "Services" means cloud-based services provided to the Customer via the website notified to the Customer by NTI, as more particularly described in the Service Description.

    "Purchase Order" means the individual order form where specification of purchased Services and other commercial terms agreed between the Parties is stated.

    "Service Description" means the descriptions of the Services, including the service levels and user restrictions.

    "Software" means software applications owned by NTI or licensed by NTI from third parties. The term Software refers to Real-Time LCA software, including the website www.realtimelca.dk and covers revised versions and updates. A description of the software application shall be maintained and made available to the Customer upon new updates.

    "Sub-Contractor" means a supplier, contractor, vendor, agent or independent consultant of any tier selected and retained to fulfil the Agreement on behalf of NTI.

    "Subscription" means the right to access and use the Services either (i) under an ongoing capacity subscription model or (ii) under a pay per project model, as set out in the Purchase Order.

    "Term" has the meaning set out in clause 13.1.

    The Services

    NTI shall render and supply to the Customer the Services as stated in the Purchase Order and subsequent written amendments to the Agreement from time to time and as agreed between NTI and the Customer.

    The Customer shall procure at its cost, install and maintain all required enabling software and third-party software required to access and use the Services, such as the 3D modelling software applied and/or the necessary complementary plugin.

    The Customer acknowledges that a failure to do so may impact its use of the Services.

    Grant and use

    Right to access the Services

    On the terms and conditions of the Agreement, the Customer is granted a limited, non-exclusive, payable, non-transferrable, revocable user right, without the right to sublicense, via rights of access granted to the Customer's Authorised Users, to access and use the Services and the Documentation during the Term.

    The grant of this right and license is subject to the Customer's compliance with this Agreement, including the Documentation and any other documents referenced in, or attached to, these Terms and Conditions, the Documentation, or a Purchase Order.

    Subscription

    In relation to the Subscription, the Customer undertakes that:

    • the number of projects and/or the capacity measured in number of square meters shall comply with the specifications in the Purchase Order;
    • it shall permit NTI or NTI's designated auditor to audit the Services, or use NTI's requested software reporting to verify that the Customer's use of the Services does not exceed the number and volume restrictions specified in the Purchase Order;
    • if any of the audits referred to in clause 4.2(b) reveal that the Customer has underpaid NTI for its use of the Services, then without prejudice to NTI's other rights, the Customer shall pay to NTI an amount equal to such underpayment as calculated in accordance with the prices set out in the Purchase Order; and
    • the Customer's Authorized Users may only access the Services via the methods specified in the Service Description.

    The Customer is responsible for all acts and omissions of each Authorized User and any and all use of the Services using each Authorized User's access credentials.

    Restrictions

    The Customer's use of the Services shall be restricted to the Customer's own use only, which for the sake of clarity shall not include access by any other than the legal entity identified as the Customer to create a project. While external parties can without limitations be invited to join an existing project.

    The Customer shall not, directly or indirectly, except as explicitly stated in these Terms and Conditions, sublicense or transfer the rights granted to it under the Agreement.

    Except as explicitly stated in these Terms and Conditions, the Agreement shall not grant the Customer any right or license to the Services, or any other IPR or property of NTI, and no license or other rights shall be created by implication or estoppel.

    In particular, but without limiting the generality of the foregoing, no right or license in or access to executable code or source code to Software is granted hereunder.

    The Customer shall comply with the Service Description and shall not itself nor permit any others to:

    • modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of any Services in any way; or
    • prepare any derivative works of the Services, or reproduce, distribute, sell, or resell Software or other Services in any manner or for any purpose.

    The Customer shall be responsible for safeguarding the Customer's password and any other credentials used to access its account. Credentials shall not be shared with third parties.

    Suspension

    NTI may, without prejudice to any other rights or remedies available to it, suspend the Customer's access to, or use of, the Services in whole or in part immediately on notice to the Customer if:

    • the Customer has failed to pay any amounts due to NTI;
    • the Customer is otherwise in breach of its obligations under the Agreement;
    • there is an attack on the Services used by the Customer or if Customer Data is accessed or manipulated by a third party without the Customer's consent;
    • NTI is required by Applicable Law to suspend the Customer's access to, or use of, the Services; or
    • NTI reasonably believes that the suspension of the Services is necessary to protect its infrastructure, network or the use of the Services by other customers because of a threat to the security, integrity or use of the Services.

    NTI shall use reasonable endeavors to re-establish or permit access to the Services as soon as possible following NTI's determination that the cause of the suspension has been resolved.

    NTI shall have no liability whether under this Agreement or at law to the Customer for any exercise of its rights pursuant to this clause 5.

    Subscription changes

    Changes to the Customer's Subscription

    If at any time the Customer wishes to change or extend its Subscription beyond the scope defined in the Agreement and NTI accepts such changes, such changes shall be set out in an amendment to the Agreement signed by NTI and the Customer and made part of the Agreement.

    Modification to the Services

    NTI is entitled to make commercially reasonable changes to the Services from time to time.

    NTI shall announce if it intends to (i) discontinue, or (ii) make backwards incompatible changes to the functionality of the Services, and such changes may be announced in the communicating channels designated by NTI or as described in the Services Descriptions.

    Customer Data

    Retained ownership to Customer Data

    The Customer shall, except if otherwise agreed, retain ownership to Customer Data.

    To enable NTI to provide the Services, the Customer grants to NTI a non-exclusive right and license to copy, exploit, process, store, transmit and use the Customer Data solely to the extent necessary to provide the Services.

    NTI shall not use Customer Data for any purpose other than for the delivery of the Services or as otherwise explicitly permitted herein, and NTI shall, upon the expiration or termination of the Subscription and upon the Customer’s request delete or destroy all copies of Customer Data stored on any computer or other device or which are otherwise in NTI’s possession or control, except to the extent NTI is required to retain such Customer Data by Applicable Laws or as part of bone fide back-up procedures.

    Use of Customer Data

    For NTI to continue the development of the Software and other new software and technologies, the Customer hereby grants to NTI a fully paid, royalty free, unlimited, sublicensable license to use, in an anonymized format, the information provided by the Customer, and information regarding the Customer's use of the Services, for the purpose of product and feature developments, to provide support, compile statistical reports and record insights into usage patterns. For the avoidance of doubt, no confidential information of the Customer shall be disclosed by NTI in relation thereto.

    Indemnities

    IPR indemnification

    NTI shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any IPR in force as of the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

    • NTI is given prompt notice of any such claim;
    • the Customer provides reasonable co-operation to NTI in the defense and settlement of such claim, at NTI’s expense; and
    • NTI is given sole authority to defend or settle the claim.

    In the defense or settlement of any claim, NTI may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement with seven (7) calendar days’ notice to the Customer and in such event, NTI’s liability shall not exceed an amount equal to a pro-rated refund for any Subscription Fees paid in advance for the period after the date of the termination, and shall thus not be liable for any additional liability or other additional costs to the Customer.

    The abovementioned shall constitute the Customer’s sole and exclusive rights and remedies and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability in regards to infringement of IPR or any other intellectual property rights.

    Indemnification conduct

    A Party shall promptly notify the other Party if it receives a claim that the other Party shall be obliged to indemnify. Whenever possible, the other Party shall take over the defense of the claim. The Parties shall promptly give each other information and other assistance needed for handling the claim. The indemnified Party shall not compromise or settle or otherwise dispose of a claim, in whole or in part, without the written consent of the other Party.

    Warranties and limitations of liability

    Warranties

    NTI warrants that the Services shall comply in all material respect with the Service Description and that it shall provide the Services with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the Services.

    In the event of breach of warranty, NTI shall re-perform the Services, and if NTI again fails to re-perform the Services in line with these Terms and Conditions, the Customer may terminate the Agreement, but only if the breach is material, and only in accordance with the procedure in clause 13.

    Except as expressly provided in these Terms and Conditions and to the extent permitted by Applicable Laws, the Services shall be provided "as is" and NTI does not make warranties of any kind, express, implied, or statutory, including those of merchantability, fitness for a particular purpose, or any warranty regarding the availability, reliability or accuracy of the Services.

    Limitation of liability

    In no event shall NTI be liable towards the Customer under or in connection with these Terms and Conditions or the subject matter contemplated hereunder, including, without limitation, the Services, whether in tort, contract, or otherwise for Consequential Loss.

    NTI shall not be liable for the transfer of data over communications facilities, including the internet, and any limitations, delays, and other problems inherent in the use of such communications facilities.

    The Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. NTI shall have no liability for any damage caused by errors or omissions in any information, instructions, Customer Data or scripts provided to NTI by the Customer in connection with the Services, or any actions taken by NTI at the Customer's direction.

    Notwithstanding anything else to the contrary in this Agreement, the Parties expressly agree that NTI's maximum total aggregate liability to the Customer for any and all breaches of the terms of this Agreement (including but not limited to any repudiatory breaches) or in relation to any other act, fault or omission connected with this Agreement and any claims arising therefrom, in tort, contract or otherwise at law shall in all circumstances whatsoever be limited to either (i) 100% of the Subscription Fee amounts agreed to be paid by the Customer for use of the Services during six (6) months prior to the event giving rise to the liability or (ii) 100,000 DKK, whichever is lower (the “Liability Cap"). For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident. The Customer shall, regardless of cause, defend, indemnify and hold harmless NTI from and against any and all claims of any nature whatsoever exceeding the Liability Cap.

    Term and Termination

    Term

    These Terms and Conditions enter into force on the Effective Date and shall remain in force unless terminated earlier in accordance with the terms of the Agreement (the "Term"). Termination notice depending on the Subscription model (ongoing capacity subscription vs. pay per project) is described in the Purchase Order.

    Termination for breach

    A Party is entitled to terminate the Agreement by written notice to the other Party if the other Party is in material breach of the Agreement and fails to remedy the breach within thirty (30) days following written notice of breach from the other Party.

    If the material breach from the Customer is not possible to remedy, NTI may terminate the license grant set out in clause 3 with immediate effect.

    For the avoidance of doubt, any termination of the license grants as set out in these Terms and Conditions is without liability to NTI, and such termination does not release the Customer from any payment obligation, nor does it entitle the Customer to any refund, unless expressly stated in these Terms and Conditions.

    Termination for insolvency

    A Party is entitled to terminate the Agreement with immediate effect, including these Terms and Conditions, by written notice to the other Party if:

    • an order is made, or a resolution is passed for the winding up or insolvency of the other Party, or the other Party makes an assignment for benefit of creditors generally, or a receiver or administrator is appointed to its assets, or any similar process is put into effect, or the other Party suspends payment of its debts or is unable to pay its debts as they become due; or
    • the other Party files for bankruptcy, becomes insolvent, or makes a general compromise or arrangement with its creditors.

    Effect of termination

    If the Subscription terminates or expires, for whichever reason, the license grant set out in clause 3 terminates simultaneously. Customers project data can be exported and delivered on request.

    In case of the Customer’s termination for breach, NTI shall refund fees paid in advance, pro-rated with reference to the effective date of the termination. Repayment of fees shall be the Customer's sole remedy and NTI's sole liability.

    Any release, indemnity or any obligation of confidence under this Agreement is independent and survives termination of the Agreement. Any other term and condition that by its nature is intended to survive termination of this Agreement survives termination of this Agreement unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the Party giving the indemnity.

    Notices and updates

    Notices

    The Parties’ contact details to which direct notices shall be sent under the Agreement are set out in the Purchase Order.

    Updates to the Terms and Conditions

    NTI is entitled to update these Terms and Conditions and the Documentation to reflect changes in Applicable Laws, modifications to the Services, or for any other legitimate and reasonable reason. The Customer will be notified of updates via the Customer’s email address provided in the Purchase Order.