24 September 2019
This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms, or sign a contract that incorporates these terms by reference. (the “Effective Date”).
Accutics ApS (“Cookie Saver“) grants a non-exclusive license authorizing the Reseller to sell subscriptions to Cookie Saver Service (“Cookie Saver Service”) in accordance with the following terms and conditions.
1. License to End Users
1.1. Cookie Saver grants the Reseller the non-exclusive license to access and use the Cookie Saver Service for the purpose of facilitating and marketing the sale and selling of Cookie Saver Service subscriptions to end users (“End Users”).
1.2. The Reseller is authorized to grant individual sublicenses to End Users of the Cookie Saver Service, and both the Reseller and the End Users must at all times access and make use of the Cookie Saver Service in conformity with the Terms of Service, which must be specifically agreed upon when accessing the Cookie Saver Service.
1.3. Any license granted by Cookie Saver in this Agreement is non-exclusive, and Cookie Saver has no obligation to refrain from any direct or indirect sale of the Cookie Saver Service.
2. License Restrictions and Reservation of Rights
2.1. The Reseller may not, nor may it permit or assist others to, (i) modify or fraudulently use the Cookie Saver Service to process or permit processing of the data of any third party not expressly authorized herein to access and use the Cookie Saver Service; or (ii) access, alter, or destroy any information of any Customer of the Cookie Saver Service by any fraudulent means or device or attempt to do so.
2.2. All rights not expressly granted to the Reseller herein are expressly reserved by Cookie Saver.
3. Reseller Models
3.1. The Reseller will solely determine the use of the reseller model and may continuously choose one or both of the following models as set out in Sections 5 or 6 in relation to the End Users. The Reseller’s arrangement with the specific End User, which is managed in the Back-End, cf. Section 8, determines which model applies for that specific End User.
4. Dealer Model
4.1. The dealer model applies to all End Users that Cookie Saver invoices directly without any involvement from the Reseller.
4.2. The Reseller will receive an administration fee corresponding to 20% of all subscription fees paid by End Users managed, serviced or supported (“First-Line Technical Support”) by the Reseller.
4.3. Every three (3) months, Cookie Saver will settle the Reseller’s account in regard to the End Users receiving First-Line Technical Support from the Reseller as set out in Section 4.2. The settlement will be sent by email to the Reseller. The administration fee will only be payable to the Reseller if the subscriptions have been paid by the End Users at the time of the settlement of the account.
4.4. If the Reseller’s account shows a balance of less than €200, the transfer of the balance will be postponed until the Reseller’s account shows a balance of €200 or more. The transfer will not, however, be postponed for more than one (1) year. If Cookie Saver or the Reseller terminates the Agreement, the Reseller’s account will be settled immediately after the termination of the Agreement.
4.5. Any fees in relation to the bank transfer from the Cookie Saver’s Danish bank account to the Reseller’s bank account will be at the Reseller’s own expense.
5. Wholesale Model
5.1. The wholesale model applies to Customers that the Reseller invoices directly without any involvement from Cookie Saver.
5.2. For those Customers that the Reseller invoices directly, the Reseller will receive a discount of 20% on the Reseller’s and all the Customers’ subscriptions created under the Reseller’s account.
5.3. Once a month, Cookie Saver will invoice the Reseller for all the Reseller’s own subscriptions and Customer subscriptions created and invoiced directly under the Reseller’s account at Cookie Saver. Subscriptions will be invoiced in arrears in accordance with the always applicable prices for the Cookie Saver Service less a total discount of 20% as described in Section 5.2.
5.4. Under the wholesale model, the Reseller is fully and solely liable for the Customers’ payment and must pay Cookie Saver’s’ invoices in full regardless of whether the Reseller has received payment from its Customers. The Reseller’s payment obligation comes into force when the Customer uses the Cookie Saver Service for the first time.
5.5. Any fees in relation to the bank transfer from the Reseller’s bank account to the Cookie Saver’s Danish bank account will be at the Reseller’s own expense.
6. Contracting Procedures
6.1. The Reseller will have access to a designated reseller area (the “Back-End”) in the Cookie Saver Service. The Back-End is used by the Reseller to facilitate the contact with potential new Customers and to manage and access all of the Reseller’s Customers’ configurations and data.
6.2. The Reseller’s access to the Customer’s configurations and data may not be used to change the Customer’s configurations and data without the Customer’s prior consent hereto.
Dealer Partner Program – Initiate Contact with Potential New Customers
6.3. For those new Customer subscriptions the Reseller wishes to establish under the dealer model set out in Section 4, the Reseller is required to use the Back-End to send a subscription email that enables the Customer to sign up for the Cookie Saver Service. The subscription email contains a unique link connecting the Reseller to the Customer.
6.4. The Reseller is required to ensure that each Customer has given its prior consent to receiving the subscription email before sending the email to the Customer.
6.5. When the Customer has subscribed to the Cookie Saver Service, the Reseller will be notified by email. The Reseller will be responsible for continuous service and support to its Customers.
Wholesale Model – Initiate Contact with Potential New Customers
6.6. For those new Customer subscriptions the Reseller wishes to establish under the wholesale model set out in Section 5, the Reseller is required to create and pay for its own Cookie Saver Service subscription at Cookie Saver.
6.7. The Reseller may determine its own contracting procedures towards its Customers.
6.8. When End Users subscribe to the Cookie Saver Service, the End Users will specifically agree to the Terms of Service provided by Cookie Saver.
6.9. For End Users managed under the dealer model, cf. Section 4, the Reseller will act as the single point of contact in regard to Cookie Saver, but this does not, however, preclude Cookie Saver from contacting the End User directly. Furthermore, the contractual relationship concerning the license for the Cookie Saver Service and the End User’s payment obligation for the use of the Cookie Saver Service and for services will be directly between Cookie Saver and the End User.
6.10. For End Users managed under the wholesale model, cf. Section 5, the Reseller is required to grant sublicenses to End Users for the Cookie Saver Service only in conformity with the Terms of Service provided by Cookie Saver. Those End Users will not have direct access to log in to the Cookie Saver Service, and their subscriptions can only be managed and configured by the Reseller.
7. Cookie Saver’s Obligations
7.1. If the Reseller experiences that the Cookie Saver Service is not in conformity with all of the requirements in this Agreement, the Reseller must notify Cookie Saver without delay at firstname.lastname@example.org or through the Cookie Saver Service’s help desk. Cookie Saver will use its best efforts to answer questions and correct reported errors that can be reproduced by Cookie Saver (or to provide suitable temporary solutions or workarounds for errors) during the initial response. If the Reseller states that the reported error is substantial and material for the use of the Cookie Saver Service or that the reported error causes the Cookie Saver Service to be inoperable, Cookie Saver will use its best efforts to correct the error within a commercially reasonable time after Cookie Saver’s initial response.
7.2. The technical support services provided herein will be provided without charge.
7.3. All technical support will be provided solely to the Reseller. The Reseller must provide First-Line Technical support to End Users, cf. Sections 8.2 – 8.3 below.
Updating the Cookie Saver Service
7.4. Cookie Saver must provide to the Reseller information about all significant updates of the Cookie Saver Service’s functionality that Cookie Saver generally releases to other Resellers.
7.5. Cookie Saver must not use the name of the Reseller in publicity releases, advertising or similar activity without the prior written consent of the Reseller, which must not be unreasonably withheld or delayed. Notwithstanding the aforementioned, the Reseller allows Cookie Saver to include the Reseller’s name, company profile and contact information in its public reseller lists and to make a routine public announcement of the execution of this Agreement.
8. Reseller’s Obligations
Observance of National Law
8.1. When advertising the Cookie Saver Service, the Reseller is obligated to observe all relevant requirements in national law. The Reseller must expressly inform all End Users that they bear the sole responsibility for being compliant with EU and national legislation, including but not limited to legislation concerning information and consent requirements in regards to cookies. If the Reseller becomes aware of developments in this regard, including but not limited to changes in national law and/or enforcement, the Reseller must inform Cookie Saver of these developments without undue delay. All actions in this regard are at the Reseller’s own cost.
First-Line Technical Support
8.2. The Reseller bears the sole responsibility for providing First-Line Technical Support to its Customers using the Cookie Saver Service. The Reseller must instruct all End Users to make all inquiries regarding support directly to the Reseller. First-Line Technical Support is at the Reseller’s own cost as it is included in the administration fee (if the dealer model applies) or wholesale discount (if the wholesale model applies).
8.3. If the Reseller does not provide First-Line Technical Support in accordance with this Agreement and the Terms of Service, Cookie Saver is entitled to change the End User relation to another reseller, if Cookie Saver has notified the Reseller of the Reseller’s breach and the Reseller has not remedied this within 3 business days. Further, Cookie Saver is entitled to set off any expenses in this regard in the administration fee (if the dealer model applies) or claim such expenses from the Reseller (if the wholesale model applies).
8.4. The Reseller may not use, sell, trade, or otherwise transfer any Customer data to third parties.
8.5. The Cookie Saver Service will be branded with trade names, service marks, trademarks, logos and indicia of origin and other distinctive branding features (“Cookie Saver Branding Features”). All non-exclusive distribution rights and licenses granted herein for the Cookie Saver Service are subject to the following branding requirements. All use of Cookie Saver Branding Features must solely be for the benefit of Cookie Saver . The Reseller may not (i) apply for registration of the Cookie Saver Branding Features (or any marks or features confusingly similar thereto) anywhere in the world, (ii) alter, modify or change the Cookie Saver Branding Features in any manner, or (iii) use any of the Cookie Saver Branding Features except as expressly authorized herein or by prior written approval from Cookie Saver.
9. Monitoring of Reseller’s Use
9.1. Cookie Saver reserves the right to internally monitor the Reseller’s usage of the Cookie Saver Service.
10. Minimum Technical Requirements for the Cookie Saver Service
Scalability and System Requirements
10.1. The Cookie Saver Service must be scalable in a manner that allows the service to meet any forecasted increase.
10.2. Cookie Saver may, at any time during the term of the Agreement, set out and amend such minimum system requirements and/or recommendations that will provide the End User with the optimal functionality of the Cookie Saver Service.
Protection of Customer Data
10.3. The Cookie Saver Service must be operated in an environment that protects the security and privacy of Customer data.
Internet Data Centers
10.4. The Cookie Saver Service will be provided through Internet Data Centers that are configured consistently with reasonable and appropriate safeguards for fireproofing, power, and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. Cookie Saver will outsource its Internet Data Center operations to subcontractors.
Cookie Saver Operations
10.5. Cookie Saver must undertake commercially reasonable efforts to operate and maintain its web servers that provide sufficient access to the Cookie Saver Service twenty-four (24) hours per day, seven (7) days per week, except when routine maintenance is required. Cookie Saver must monitor such servers and undertake commercially reasonable efforts to restore promptly all failures of service at Cookie Saver’s own expense.
11.1. Cookie Saver’s Data Processing Agreement available at cookiesaver.com/processing-agreement sets out the security procedures implemented.
12. Intellectual Property Rights and Copyright
12.1. Cookie Saver holds full copyright, title, and any and all other intellectual proprietary rights to the Cookie Saver Service and nothing in this Agreement operates to assign or transfer any intellectual property rights (“IPR”) from Cookie Saver to the Reseller, or End Users.
13. Representations and Warranties
13.1. Each of the parties represents and warrants to the other that (i) each party has full legal right, power and authority to enter into and perform this Agreement; (ii) the Cookie Saver Service, proprietary rights, and any branding features of either party specified herein do not infringe or misappropriate any proprietary right of any third party or constitute defamation, invasion of privacy, or violation of the privacy rights of any third party; (iii) all IPR in the Cookie Saver Service as set out in Section 12, proprietary rights, and any branding features of either party specified herein are either owned by the providing party or are properly sublicensed from third parties granting such party the right to use same as contemplated hereunder; (iv) regarding the collection and use of End-User data, each of the parties represents and warrants to the other that neither party will violate any rights of any person or entity, including without limitation, rights of publicity, privacy or personality; and (v) any and all sublicenses granted by the Reseller in connection with the Cookie Saver Service must be in compliance with the Terms of Service provided at the Cookie Saver Service.
14.1. Each party must defend, indemnify and hold harmless the other, its subsidiaries, successors, assigns, executive officers and employees from, for and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including actual attorneys’ fees and expenses regardless of whether litigation was commenced) (a “Claim”) arising out of or in connection with a breach/untruth of any express representation and warranty set out in Section 13, provided that: (i) the indemnified party notifies the indemnifying party in writing of the Claim promptly upon the indemnified party becoming aware of such Claim; (ii) the indemnifying party must have exclusive control of the settlement or defense of any action to which the Claim relates; and (iii) the indemnified party cooperates with the indemnifying party in every reasonable way to facilitate such defense or settlement. If, after it has been given notice of such Claim, the indemnifying party does not defend any such Claim, the indemnified party may take any of the above actions and must be fully indemnified by the indemnifying party.
15. Warranty Disclaimers
15.1. Except as expressly set forth in Section 13 and to the extent allowed by law, each party on behalf of itself and its suppliers hereby disclaims all warranties, both express and implied, including the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, system integration, and data accuracy. Neither party warrants or guarantees that the operation of the Cookie Saver Service will be uninterrupted or error-free. Neither party guarantees that data submitted or held in storage on or through its systems associated with the internet will be secure from unauthorized access. Each party acknowledges that it has not relied on any representation that is not expressly set out herein.
16. Disclaimer of Incidental and Consequential Damages
16.1. Except for indemnities and obligations regarding confidential information expressly provided herein, neither party will, in any event, be liable to the other under any provisions or court precedents, including contract and tort (including negligence and strict product liability) for any indirect, special, incidental or consequential damages, even if the party causing such damages has been advised of the possibility of such damages.
17. Reciprocal Disclosure of Confidential Information
17.1. The parties anticipate that each party may disclose confidential information to the other. Accordingly, in this Section, the parties desire to establish the terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”). For purposes hereof, “Confidential Information” means the terms and conditions in this Agreement, and other information of an Owner, including business models and plans, and technical information and data of the Owner or its Customers or suppliers. The Recipient may use Confidential Information of the Owner only for the purposes of this Agreement and must protect such Confidential Information from disclosure to others. The Recipient may only disclose the Confidential Information if reasonably required to perform the Recipient’s obligations under this Agreement. The restrictions of use and disclosure of the Confidential Information do not apply to information that (i) is in the possession or control of the Recipient at the time of its disclosure; (ii) is or becomes publicly known through no wrongful act of the Recipient; (iii) is received by the Recipient from a third party who is free to disclose the Confidential Information without any obligation towards the Owner; or (iv) is independently developed by the Recipient without reference to the Confidential Information.
18. Injunctive Relief
18.1. The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of proprietary rights, hereunder Cookie Saver’s IPR as set out in Section 12, would constitute irreparable harm, and that the aggrieved party will be entitled to specific performance and/or injunctive relief in addition to other remedies at law.
19. Term of Agreement
19.1. The initial term of this Agreement will commence as of the Effective Date hereof and continues for a period of one (1) year. The initial term hereof will automatically renew for a successive one (1) year term unless one party notifies the other in writing no less than ninety (90) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. The Reseller is free to set its own terms of termination in regard to End Users regardless of the terms of termination of this Agreement.
19.2. This Agreement may not be assigned by the Reseller.
19.3. This Agreement will terminate immediately without notice in the case of the Reseller’s insolvency, bankruptcy or similar proceedings by or against the Reseller, any attempted assignment by the Reseller for the benefit of creditors or any appointment or application for such appointment of a receiver for Reseller unless the Reseller promptly informs Accutics of the contrary in writing.
Termination for Cause
19.4. If any breach is not cured within eight (8) days from receipt of a written notice describing the nature of the breach, either party may terminate this Agreement and all rights granted herein. Both parties acknowledge that any uncured failure to pay the other party timely constitutes a material breach of this Agreement.
Effect of Expiration or Termination
19.5. Upon the expiration or termination of this Agreement, the Reseller must immediately cease to sell the Cookie Saver Service. The expiration or termination of this Agreement will not terminate the rights of existing End Users and Cookie Saver will assume responsibility for delivery of the Cookie Saver Service to such End Users under the Terms of Service provided by Cookie Saver. The Reseller has no right to claim compensation for lost goodwill, lost business opportunities, or similar compensation as a consequence of the termination, regardless of the reason for termination.
20. Governing Law
20.1. This Agreement is governed by the laws of Denmark without regard to conflict of law principles.
21. Choice of venue
If you are based in the EU
21.1. In the event of any dispute or disagreement arising under or in connection with the Terms or the Agreement (including a dispute or disagreement as to the validity of the Terms or the Agreement), such dispute or disagreement will be referred to and resolved under the exclusive jurisdiction of the Danish courts.
If you are based outside the EU
21.2. In the interest of resolving disputes between you and Cookie Saver in the most expedient and cost-effective manner, you and Cookie Saver agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory and regardless of whether a claim arises during or after the termination of this Agreement. Any arbitration between you and Cookie Saver will be governed by the Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The arbitral tribunal shall be composed of three arbitrators. The place of arbitration shall be Copenhagen, Denmark. The language to be used in the arbitral proceedings shall be English. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COOKIE SAVER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
21.3. Despite the provisions of Sections 1 and 21.2, we both agree that nothing in Agreement will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
21.4. YOU AND COOKIE SAVER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Cookie Saver agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
22.1. Cookie Saver is free to assign this Agreement or any right or interest under this Agreement to a third party, including but not limited to a company owned or partly owned by Cookie Saver.
22.2. The Reseller must not assign this Agreement or any right or interest under this Agreement nor delegate any work or obligation to be performed under this Agreement without Cookie Saver’s prior written consent. Any attempted assignment or delegation in violation of this Section will be void and ineffective. The Reseller is, however, allowed to appoint other resellers to perform sales on behalf of the Reseller.
23. Continuing Obligations
23.1. The following obligations will survive the expiration or termination of this Agreement: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein; (ii) any covenant granted in this Agreement for the purpose of determining ownership of or protecting proprietary rights, hereunder Cookie Saver’s IPR, including without limitation, the Confidential Information of either party or any remedy for breach thereof; and (iii) the payment of taxes, duties or any money to Cookie Saver as set out in this Agreement.
24. Independent Contractors
24.1. The relationship between the parties is that of an independent contractor, and nothing herein should be construed to create a partnership, joint venture, franchise, employment or agency relationship between the parties. The Reseller has no authority to enter into agreements of any kind on behalf of Cookie Saver and does not have the power or authority to bind or obligate Cookie Saver in any manner to any third party.
25. Force Majeure
25.1. Neither party is liable for any damage, delay, or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including but not limited to, Acts of God, acts of civil, or military authority, fires, riots, wars, embargoes, internet disruptions, hacker attacks or communications failures.
26.1. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and replaces all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions of this Agreement will not be a waiver of such provision or any other provision nor of the right of such party thereafter to enforce any provision in this Agreement.
27. Contact Information
If you have any questions or comments about these Terms of Service as outlined above, you can contact us at:
5250 Odense SV
Company reg.no. 38 40 40 08