Terms of Service
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 EASI’R, including any associated products, integrations, documentation and services in connection herewith (hereinafter “EASI’R”), which is made available to the Customer by Loyalty Factory GmbH, company registration number: DE226059378, Commercial Register: HRB 20209 Chemnitz, Neefestrasse 90, DE-09116 Chemnitz, Germany (hereinafter “LF”).
Upon subscription and use of EASI’R, these Terms of Services are accepted by the Customer and shall form a legally binding agreement between LF 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 LF at email@example.com.
Section A. Commercial and Legal Terms
EASI’R is an online software platform, which enables car dealers to gain overview of information concerning potential and existing leads in order to optimise the car dealers sales efforts.
3. Grant of User Rights to EASI’R
3.1 Trial License
Upon the Customer’s initial subscription to EASI’R, LF shall grant a royalty free, non-exclusive, non-transferable (including no right of sublicense) right to the Customer to use EASI’R for a period of thirty (30) days (hereinafter “Trial License”) exclusively for the Customer’s internal business purposes in accordance with these Terms of Service. The Trail License is limited to the number of users, that Customer has subscribed for and each user is limited to one person (“per-seat-license”) at all times. For example, if Customer subscribes 10-user licenses, Customer shall be entitled to assign 10 specifically named users to EASI’R. Customer shall be entitled to change the named users. Upon expiry of the Trial License, Customer’s access to EASI’R shall automatically be removed and all data shall be deleted in accordance with LF´s internal procedures, unless the Customer has purchased a commercial license.
3.2 Commercial License
If the Customer has purchased a commercial license (hereinafter “Commercial License”) to EASI’R, LF shall grant a time-limited, non-exclusive, non-transferable (including no right of sublicense) right to the Customer to use EASI’R exclusively for the Customer’s internal business purposes in accordance with these Terms of Service. The Commercial License is limited to the number of users, that Customer has subscribed for and each user is limited to one person (“per-seat-license”) at all times. For example, if Customer subscribes 10-user licenses, Customer shall be entitled to assign 10 specifically named users to EASI’R. Customer shall be entitled to change the named users. The Customer’s right of use of the Commercial License is contingent upon the Customer’s continuously payment to LF.
Customer’s right of use shall at all times be limited to the latest available version of EASI’R, which is provided by LF.
The Customer may copy documentation for internal use only if it is provided that LF’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 EASI’R 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 EASI’R or algorithms, user interface techniques or other ideas embodied in EASI’R; or (iii) tamper with, or attempt to circumvent or disable any license key to EASI’R and/or any copy protection technology included in EASI’R.
4. Intellectual Property Rights and Customer Data
All right, title and interest in EASI’R (including all intellectual property rights) shall remain the property of LF and/or its respective affiliates and licensors.
Any ideas, know-how and any software or documentation developed by LF in the course of providing any technical services, shall also remain the property of LF.
Customer receives only a license to use EASI’R as described in these Terms of Service.
LF shall defend and pay any final non-appealable judgment to the extent arising from any third party claim against Customer’s use of EASI’R, (excluding any third party software) within the scope of these Terms of Service if EASI’R infringes a copyright or patent or any other third party right enforceable in Germany and Scandinavia, provided that: (a) Customer notifies LF in writing within 30 (thirty) days of the claim; (b) upon request LF shall gain sole control of the defence and all related settlement negotiations; and (c) upon request, Customer provides LF with all necessary assistance, information, and authority to assume the defence; reasonable out-of-pocket expenses incurred by Customer in providing such assistance will be reimbursed by LF. With respect to third party software, LF will pass through to Customer any indemnity it receives from the third-party licensor as Customer’s sole remedy.
In the event EASI’R is found to, or is believed by LF to infringe copyright, patent or any third party right, LF shall have the option, at its expense, to: (a) modify EASI’R to be non-infringing; or (b) obtain for Customer a license to continue using EASI’R or (c) return the License Fee paid, and Customer shall discontinue all use of EASI’R.
EASI’R may include open source software. Copyright to the open source software are held by the copyright holders indicated in the copyright notices in the corresponding source files. LF 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.
Customer shall retain all right, title and interest in data, which Customer stores in EASI’R (hereinafter “Customer Data”) in accordance with these Terms of Service.
In the course of the Agreement LF and 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”).
LF and 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).
6. Limited Warranty
EASI’R is provided by LF 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.
LF will use suitable, appropriately qualified, experienced and competent personnel as per ISO 27001 certification to which LF complies.
Furthermore, LF will assume full responsibility for the management of all its personnel and the acts and omissions of all sub-contractors in the provision of EASI’R.
LF will undertake commercially reasonable efforts to correct reported errors in EASI’R in accordance with LF’s maintenance policy. Customer acknowledges that complex software is never free of software errors and security defects. LF does not give Customer a guarantee that all errors will be corrected.
Except for the express warranties set out above, LF makes no additional warranties or representations regarding EASI’R to Customer or to any other party.
7. License Fee and payment terms
All prices (“License Fee”) are quoted in Euros (€), exclusive VAT. All payments shall be made in advance in Euros (€)
It is possible to choose between Annual or monthly payments.
All invoices are payable within 8 days of receipt without any possibility for deductions.
LF reserves the right to adjust the License Fee with 90 days of notice.
8. Personal Data and Personal Data Protection
In the course of delivering EASI’R to Customer, LF shall process personal data on behalf of Customer (primarily store personal data) and as a result LF is a processor of Customer in accordance with applicable data protection legislation.
LF’s processing of personal data on behalf of Customer shall be governed by LF’s Data Processing Agreement (See section B. Terms for Processing of personal data on behalf of Customer).
LF shall each act as a controller in accordance with applicable data protection legislation (GDPR) for such personal data LF process in its own interest in connection with the Agreement. In doing so LF 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, LF will ensure that personal data is processed in accordance with all applicable legislation and principles.
9. Term and Termination
The Trial License shall automatically expire after fourteen (14) days.
Either Party shall be entitled to terminate the Commercial License for convenience by giving thirty (30) days’ written notice. Customer shall not be entitled to receive any refund for License Fee paid in advance in connection with termination of the Agreement.
Customer’s subscription to EAS’R shall not be subject to the statutory 14 days cancellation period.
LF and 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).
10. Consequences of Termination
Upon expiry of the Trial License or termination of the Commercial License in accordance with Clause 9, Customer shall no longer be granted any rights to use EASI’R and access to EASI’R shall be removed.
Prior to the expiry of the Trial License or termination of the Commercial License, Customer shall be responsible for retaining all Customer Data from EASI’R. LF shall have no responsibility for any deletion of Customer Data.
11. Limitation of Liability
LF shall not be liable to Customer for any claims, losses, damages, penalties, interest, fines, costs, liabilities, expenses and fees, including attorneys’ fees and expenses, or any indirect, incidental, economic, special or consequential losses, including loss of profits, revenue, data, or use, incurred by Customer or any third party, whether in an action of the Agreement, tort or otherwise (Damages), even if LF or any other related person has been advised of the possibility of such Damages. Furthermore, LF shall not be responsible for any Damages covered by insurance taken out by Customer or which are beneficial to Customer.
LF’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 EASI’R or EURO 20.000.
The provisions regarding LF’s limitation of liability allocate the risks under the Agreement and the corresponding License Fee paid by Customer to LF.
12. Force Majeure
If LF is unable to provide EASI’R under these Terms of Service as a result of force majeure, LF cannot be held liable as a result of any Damages, nor shall Customer be entitled to terminate the Agreement. Force Majeure is a condition over which LF has no reasonable influence and which LF 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 EASI’R shall constitute as force majeure.
In case of force majeure, LF shall immediately notify Customer of the force majeure situation.
LF may refer to Customer as a reference for marketing, sales material and inquiries, including use of company name and logo of Customer.
All notices to LF shall be sent to firstname.lastname@example.org.
In the event 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 LF of any default or breach of these Terms of Service shall not constitute a waiver of any other or subsequent default or breach.
14. Disputes, Venue and Governing Law
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).
Excepted from the general governing law rule are Customers, which are legal entities in Germany. For these Customers the choice of law is German law and the choice of venue in first instance shall the Court of Chemnitz (Landgericht Chemnitz).
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 LF may seek immediate injunctive relief or equitable remedies for breaches of the intellectual property rights or confidentiality obligations.
Section B. Terms for processing of personal data on behalf of Customer
Unless otherwise clear from the context, the following terms shall have the following meaning:
“Data Protection Legislation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR) and any relevant amendments and/or other relevant national regulation.
“Services“ means the processing of personal data by LF in the role as processer towards Customer in connection with EASI’R.
The terms “personal data”, “special categories of personal data”, “processing”, “transfer”, “data controller”, “data processer”, “data subject”, “registered”’, “supervisory authority”, “pseudonyming”, “technical and organisational measures”, and “personal data breach” shall in the context of this Data Processing Agreement be understood in accordance with the meaning given to them in current Data Protection Legislation, including the Data Protection Regulation.
16. Processing of Personal Data
- Hosting (storage) of personal data
- Ad hoc support and maintenance services
- General personal data in accordance with Article 6 in the GDPR, e.g. names, addresses, phone, E-mail.
- Customers and potential customers (leads) and employees of Customer.
17. Safeguards and general obligations
LF shall ensure that those persons engaged with the processing of personal data have either been obliged to secrecy or are subject to a relevant regulatory obligation of secrecy.
LF shall perform the necessary measures to ensure that any person performing work for LF and who has access to the personal data only processes the personal data in accordance with LF’s instructions.
With consideration to the current technical level, implementation costs, and the nature, scope, context, and purpose of the relevant processing together with the risks of varying likelihood and seriousness regarding the rights and freedom of Data Subjects, LF and Customer shall take necessary technical and organisational measures to ensure a security level commensurate with those risks.
When assessing which security level is appropriate, LF and Customer shall consider the risks connected with the processing, including but not limited to the risks of accidental or illegal destruction, loss, change, unauthorised disclosure of or access to personal data transmitted, stored, or processed in any other way.
Taking into account the nature of the processing, LF shall assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in the Data Protection Legislation. LF shall be entitled to invoice Customer for any other assistance after time and material in accordance with its standard hourly rates.
LF shall notify Customer without undue delay after having become aware of a personal data breach. Additionally and taking into account the nature of processing and the information available to LF, LF shall assist Customer in ensuring compliance with Customer’s obligations relative to (i) documenting all personal data breaches; (ii) reporting any personal data breaches to the relevant supervisory authority/authorities, and; (iii) notify the registered persons of any such personal data breaches regarding the data sub-processor’s services, all of which in accordance with Articles 33 and 34 in the GDPR.
18. Use of Sub-Processers
Customer accepts that LF may use sub-suppliers (sub-processors) to assist with the delivery of the Services. Any additions and/or changes to the list shall be communicated via LFs website. Any updates to the website shall be given at least seven (7) calendar days prior to the planned change. If Customer wishes to lodge a protest against the change, Customer shall do this in writing within three (3) calendar days of receipt of LF’s notification of the change. Lack of protest from Customer will be considered consent to the sub-processing.
LF shall ensure that sub-processors are subject to the same terms and obligations as LF in respect of processing personal data pursuant to this section C. Agreements between LF and sub-processors shall be in writing and be supplied to Customer on request. Notwithstanding the aforesaid, LF is entitled to withhold documentation regarding commercially confidential information, which does not affect LF’s ability to comply with its obligations under the Data Protection Legislation.
LF warrants the legality of the sub-processors’ processing of personal data. LF shall have the responsibility for all actions and omissions of the sub-processors, including those persons hired or engaged by the sub-processors, and this responsibility is in effect to the same extent as for the LF’s own actions and omissions.
Notwithstanding the aforesaid, Customer accepts that as part of the Services, LF, in accordance with Customer’s instructions store personal data in third party cloud. Customer accepts, that such storage and any other processing of personal data by the use of such cloud services are specifically subject to the then current cloud provider’s terms and conditions for processing of personal data. Furthermore, Customer accepts that the obligations of LF in connection any such processing is limited in accordance with such terms and conditions.
19. Transfer of Personal Data to a Third Country or an International Organisation
LF is allowed to transfer personal data outside the EEA or to access personal data outside EEA in connection with the Services. LF is obliged to ensure that (i) such transfer is legal, including that there is a sufficient level of security for the transfer of personal data, e.g. when acceding to standard contract terms regarding transfer of personal data to LFs established in countries outside the EEA, pursuant to the Commission’s ordinance of 5 February 2010 (or any subsequent ordinance that replaces it) between on the one hand Customer and on the other hand LF and all potential sub-processors; (ii) all necessary permits have been obtained, and; (iii) all necessary notifications regarding the transfer in question have been submitted to the relevant supervisory authority.
20. Audits and compliance
LF and Customer shall apply and uphold relevant Data Protection Legislation and shall not perform their obligations pursuant to this section in a way that may contribute to the other party being in breach of their obligations relative to relevant Data Protection Legislation.
LF will assist Customer in complying with Customer’s obligations relative to relevant Data Protection Legislation, including in relation to Article 35 (Data Protection Impact Assessments) and Article 36 (Prior hearing) of the GDPR. LF shall be entitled to invoice Customer for any other assistance after time and material in accordance with its standard hourly rates.
On request from Customer, LF shall provide sufficient information to enable Customer to oversee that the requirements of the Data Protection Legislation are being adhered to in form of LFs ISO 27001 certification (or other equivalent standards). LF shall permit and contribute to any audits, including inspections, performed by Customer or an auditor authorised by Customer. LF is entitled to invoice Customer for any costs in connection with preparations or audits held by Customer or on behalf of Customer.
21. Termination of processing of personal data
Prior to termination the Agreement, LF shall make available all personal data for Customer in order to Customer to extract relevant personal data from EASI’R. Upon termination of the Agreement LF shall either delete or anonymize all personal data processed pursuant to the Agreement and provide documentation of this to Customer. Notwithstanding the beforementioned, LF shall be entitled to store personal data if required by EU law and/or member state national legislation. Customer acknowledges and agrees that to the extent LF shall provide any backup of the personal data, the Data sub-provider will delete any such data in accordance with its internal procedures, but until then the purpose of the backup is based upon the instructions of Customer. LF warrants that it will not disclose or process the personal data for any other purposes than backup.