In addition to the defined terms set out elsewhere in the Agreement, in these terms and conditions, defined terms and expressions with capital letters shall have the meaning set out below:
Access Details means the user-IDs and passwords to access the Platform Seat designated to each User to use the Platform.
Affiliate means a legal entity controlled by the Customer by (i) direct or indirect ownership of more than 50% (fifty per cent) of the share capital or other ownership interest; or (ii) by the right to exercise more than 50% (fifty per cent) of the votes; or (iii) by the contractual right to designate more than half of the members of such entity’s board of directors or similar executive body.
Confidential information means any information disclosed by one party to the other pursuant to this Agreement which is marked “Confidential”; “Proprietary,” or which, under the circumstances surrounding disclosure, would reasonably be expected to be confidential.
Data means any data entered into the Platform by the Users or into the LYS App by the Subscriber.
General Terms means these General Terms and Conditions.
Individual Terms means the specific terms agreed between LYS and the Customer in the Agreement.
License means the license granted to the customer in this agreement.
LYS App means the software application for mobile devices used by Subscribers which receives data from the LYS Button and transmits data to the Platform.
LYS Button means the physical hardware device measuring light.
Office Hours means 10-17 CET excluding weekends and public holidays.
Platform means LYS’ online Wellbeing Platform or Research Platform.
Platform Seat means the user account accessible by the Customer’s Users by way of a user-ID and a password which each User designated by the Customer will be equipped with in order to use the Platform.
Service Fees means the fees charged by LYS as set out in the Individual Terms.
Subscriber means a physical person (an employee of the Customer), which uses the LYS Button and the LYS App.
User means an individual employee of the Customer entitled to use a Platform Seat.
- The following General Terms shall govern the Customer’s use of the Platform, the LYS App, the LYS Buttons and support services provided by LYS or its sub-contractors. Deviations from these General Terms shall only apply to the extent they have been accepted by the Parties in writing in the Individual Terms.
2. The Platform Services
- LYS shall make the Platform available to the Customer. LYS intends that the Platform shall be available to the Customer 24 hours each day, 365 days a year, but does not provide any warranties for availability or uptime.
- This Agreement grants to the Customer and its Affiliates, a non-transferable, non-exclusive global license to use the Platform to the extent specified in the Individual Terms, including any patches and associated documentation.
- The Customer’s use of the Platform is subject to the Customer’s timely and effective payment of Service Fees charged by LYS, including for the number of Platform Seats set out in the Individual Terms.
- In order to use the Platform, each User designated by the Customer will be equipped with a Platform Seat. Each Platform Seat shall be accessed only by the individual User that is associated with that specific Platform Seat.
- The Customer shall ensure that the Access Details are secured at the same level of standards as its other credentials. The Customer is liable for any misuse of the Platform.
- The Customer shall inform LYS immediately if the Customer suspect that any of the Customers Access Details or Platform Seats has been compromised.
- LYS may at its discretion disable the Customer’s access to the Platform and/or terminate the Agreement immediately (i) if Service Fees or other fees are not paid on time, or (ii) if the Customer uses the Platform beyond the agreed scope or (iii) if a third party instructed, engaged or allowed access by the Customer, amend, modify, make additions, deletions or changes to the Platform; or (iv) if the Customer permits non-authorized users to use the Platform; or, (v) if the Customer fails to comply with any other provision of these General Terms.
- The Customer is aware and accepts that the Platform is “as is” without any guarantee or warranty for the correctness of the output content. Further, any use of the output content by the Customer shall be at the Customers own risk.
- LYS always recommend using the latest version of browsers. LYS will run on most known browsers. Mobile access/tablets can be used but LYS cannot guarantee that all functions will be accessible on all types of units or could have a different user interface depending on the unit.
- LYS may provide the Customer with information and notices about the Platform electronically, including via email, through the Platform, or through a web site that LYS identifies. Notice is given as of the date it is made available by LYS.
3. LYS App
- LYS will make the LYS App available for download by the Subscriber. The LYS App is available for the operating systems set out on “Products” page on LYS’ website.
- The LYS App and/or LYS website may include additional information on the use of the LYS App, including any usage restrictions and other requirements on the Subscriber which must be observed during the use of the LYS App.
- The Subscriber is responsible for its own devices and ensuring that it is up to date in order to use the LYS App and connect to the LYS Button.
4. LYS Button
- Unless otherwise agreed, LYS will send the number of LYS Buttons specified in the Individual Terms to the Customer once Customer has paid the applicable fees.
- LYS will the LYS Buttons using either courier service or standard mail services – the risk passes to the Customer once the LYS Buttons are handed over to the carrier.
- The Customer shall examine the LYS Button(s) upon receipt, and shall notify LYS without undue delay, if Customer during such examination finds any defects in the LYS Button(s).
- LYS provides product warranty on the LYS Button(s) as set out in the accompanying instructions.
- If the LYS Buttons are sent to the Customer before payment is made, LYS retains ownership of the LYS Buttons until payment has been made in full by the Customer.
5. Customer Obligations
- In addition to any obligations on the Customer set out elsewhere in the Agreement or as reasonably requested by LYS, the Customer shall:
- Setup the Users on the Platform and ensure Access Detail requirements as set out in section 2.5 are complied with.
- Instruct the Subscribers in the use of the LYS App and the LYS Button, if needed.
6. Support Services
- After the signing of the Agreement, LYS will provide an online “kick-off meeting” to the Customer in order to onboard the relevant employees (i.e. Users) to the Platform.
- Online guidelines and “FAQ” for use of the Platform and the LYS APP may be available on LYS’ website at LYS’ discretion.
- LYS will provide support services to the extent set out in the Individual Terms. Support will be during Office Hours. LYS support can be contacted by phone or e-mail.
- Support requests may only be passed on to LYS by Users who have an understanding of the Platform.
- The Customer shall provide 1st level support services, including but not limited to matters relating to User access, registrations, and requests from Subscribers, and the guidance of the Subscribers in the use of the LYS App and the use of the Platform in the Customer’s own organization.
7. Updates and Releases
- The Platform and the LYS App are regularly updated. This is to ensure a continued and secure operation. LYS shall be entitled to perform such updates, without the Customer’s consent, provided that such changes do not materially prevent the Customer from using the Platform or the LYS App.
8. Other Services
- LYS may provide additional services to the Customer (e.g. R&D, training, customization). Unless otherwise agreed, such other services shall be based on time and material and the Customer shall reimburse LYS for all expenses incurred in connection with performance of the services, including travel and accommodation. LYS shall comply with Customer’s travel policy, if applicable.
- The delivery of such other services shall be subject to a separate and individual service agreement or set out in the Agreement as “other services”, which will specify the scope, timing, pricing etc. of each task and may supersede these General Terms.
- Any delivery time for such other services is an estimated delivery time only, and the Customer shall contribute to the performance of the service by providing access to necessary resources and equipment.
- The Customer is entitled to terminate the delivery of such other services for convenience by giving notice in writing to LYS. Upon such termination LYS delivery of services shall immediately cease and, the Customer shall pay any invoice for services provided prior to termination. If a Party is in material breach of any of its obligations related to such other services and such breach is not remedied within 30 (thirty) days after the receipt of a written notice hereof from the other Party, or if the breach is not curable, the Party not in breach shall without further notice, be entitled to terminate. For the avoidance of doubt, the termination of other services shall not entitled a party to terminate the Agreement.
9. Data – Ownership and Security
- Data shall belong exclusively to the Customer, however, LYS shall be entitled to analyze the data for the purpose of improving and maintaining the quality and scope of its products and services.
- LYS shall take reasonable and industry compliant measures to ensure that Data are kept safe however LYS shall not be liable for any loss of Data which is beyond LYS’ control. LYS takes back-up of Data once daily and keeps such back-up Data for 35 days.
- Any processing of personal data is subject to LYS’ standard Data Processing Terms.
10. Service Fees and Payment Terms
- The Service Fees and any payment for additional services shall be billed monthly in arrears on the last date of the month reflecting the Customers number of Platform Seats. Invoices shall become due on the date of the invoice and shall be payable not later than 14 days from the date of the invoice.
- All prices are exclusive of shipping fees as well as any taxes, vat, fees, levies or duties imposed by tax authorities. In the event that a withholding tax is paid or payable in relation to the fees the Customer shall bear and be responsible for and pay the amount of any such tax.
- In the event of late payment LYS may charge interest at a rate of 1.5% per commenced month until payment in full (including interest and reminder charges) is made.
11. Term and Termination
- The Agreement becomes effective when signed by both parties and runs until terminated by either party.
- Unless otherwise agreed in the Individual Terms, the Agreement shall be non-terminable for a subscription period of 12 months from the date signing of the Agreement. After the expiry of the 12 months period, the Agreement may be terminated for convenience in writing by either party giving 1 months’ notice before the end of a month (i.e. current month + 1).
- If a party ceases to do business or otherwise terminates its business operations or becomes insolvent or seeks protection under any bankruptcy, creditors arrangement, or comparable proceeding, or if any such proceeding is instituted against a party and is not dismissed within 60 days, the other party may terminate this Agreement upon giving 30 days’ notice of termination.
12. Warranties and Remedies
- LYS warrants that:
- it has the right to enter into this Agreement and to grant to the Customer a license or sub-license to use the Platform and the LYS App as contemplated by these Agreement; and
- the Platform and the LYS App are to the best of LYS’ knowledge free from viruses and other malicious code.
- Except for the expressed warranties set forth herein LYS and its suppliers disclaim all other warranties, promises or representations, expressed or implied, including the warranties of merchantability or fitness for any particular purpose, with respect to the Platform, any lost data or documentation, software produced data, any services or technical assistance or any other item delivered by LYS.
- The Customer’s sole remedy for any defect in the Platform, the LYS App or a LYS Button for which LYS is responsible and LYS’ obligation under the Agreement will be at the exclusive choice of LYS, either to fix or replace the defect services and or product.
- The Parties are liable for damages under the normal principles of Danish law, unless otherwise limited in the Agreement.
- In no event shall LYS, its officers, agents, employees or suppliers be liable to any person or entity for the loss of profits or for indirect, special, incidental, consequential or punitive damages arising out of the Agreement, even if LYS or its officers, agents, employees, or suppliers have been advised of the possibility of such damages.
- LYS is only liable for product liability under statutory product liability legislation, to the extent LYS cannot legally disclaim such liability. LYS hereby disclaims all other product liability. LYS’ product liability is capped at the amount of LYS’ liability insurance.
- In no event shall the total, cumulative liability, including without limitation damages, proportional reductions and any indemnifications, of LYS and its suppliers exceed the higher of 1) six (6) months’ Service Fees, or 2) EUR 50.000.
14. Intellectual Property Rights
- LYS holds all intellectual property rights to the Platform, the LYS App and the LYS Buttons and any intellectual property rights shall remain solely with LYS and nothing in this Agreement shall operate to deprive LYS of any of its rights in this regard. All rights not specifically granted to the Customer under this Agreement are expressly reserved by LYS.
- Unless the Parties agree otherwise, all rights to any deliverable or software developed or produced under the Agreement or a separate service agreement shall be the exclusive property of LYS.
15. Third-Party Rights
- If a third party makes a claim against the Customer that any LYS infringes any intellectual property right, LYS will defend the Customer against such claim and pay all costs, damages – including reasonable attorney’s fees – awarded against the Customer by a court having jurisdiction over the matter; provided that the Customer notifies LYS in writing after the Customer has become aware of a claim or a potential claim and LYS may assume sole control of the legal handling of the claim and all related actions and negotiations. Customer shall at its own cost provide LYS with the assistance, information and authority, which in the reasonable opinion of LYS will be necessary.
- Notwithstanding the above, LYS shall have no liability for any claim based on the use, modification or combination of the Platform, the LYS App and/or the LYS Button not in accordance with this Agreement or LYS written instructions.
- If, in LYS’ reasonable opinion or LYS or Customer receives a claim or court order, any part of the Platform is or may infringing the rights of a third party, LYS shall either, obtain for the Customer the right to continue the use service or product, or replace or modify the service or product to make it non-infringing.
- If none of the above options are available on a basis that LYS considers to be commercially reasonable, then LYS may terminate the Agreement and refund to the Customer the Service Fees paid in advance and unused by the Customer.
- Each party shall maintain the confidentiality of the other party’s Confidential Information.
- If the Customer wishes to provide access to LYS’ Confidential Information, to a third party providing services to the Customer, such disclosure is permitted, provided such third party prior to any disclosure has signed and executed either a non-disclosure agreement directly with LYS or a non-disclosure agreement approved by LYS. The Customer shall be liable for any misappropriation or disclosure of Confidential Information by such third party in breach of these General Terms and any non-disclosure agreement.
- Upon termination of the Agreement, for whatever reason, the parties shall return all Confidential Information, except materials that in accordance with statutory requirements must be maintained for archiving purposes.
- LYS shall not in any way be restricted from using any general knowledge and know-how obtained from Customer.
17. Assignment and Sub-contracting
- LYS may assign its rights under this Agreement wholly or partly to a third party or entrust the performance of its obligations or parts hereof to subcontractors. LYS’ use of subcontractors does not release LYS from its obligations vis-à-vis the Customer.
- The Customer may not give away, rent, lease, sell, assign or otherwise transfer its rights under this Agreement to any third party except with the express written consent of LYS.
- The Customer may assign the Agreement without any consent from LYS within the Customer group of companies including e.g. parent company and Affiliates as well as in the case of corporate restructuring. In such case, the Customer shall notify LYS without undue delay.
18. Disputes, Choice of Law and Venue
- The Agreement shall be governed by, and exclusively construed in accordance with, the laws of Denmark, not considering its provisions that may lead to the application of any other substantial law than Danish law.
- Should any dispute arise between the Parties in connection with the Agreement, which the Parties cannot resolve through bona fide negotiations, such dispute shall be resolved through arbitration at the Danish Institute of Arbitration in accordance with the “rules on simplified arbitration”. The arbitrator is appointed by the Danish Institute of arbitration.
- The place of arbitration is Copenhagen, Denmark, and the language of the arbitration is the English language.