Version 1.0 August 2019
This service subscription agreement (the “Agreement” or “SSA”) is entered into by the company referenced in the signup form or order form (the “Customer”) and Openli ApS (“Openli”, “us” or “our”).
The Customer is signing up to access and use the Openli product (the “Openli Product”) listed in the order form or signup form, including if mentioned a free trial of one or more Openli Product(s) ("Free Trial").
The Agreement includes the following:
(i) the signup form or order form (“Order Form”), which contains details of the Openli service, incl. the price, the Openli Product etc.
(ii) the data processing agreement (“DPA”), see section 6, and
(iii) the policies and guidelines (collectively, the "Guidelines") available on Openli’s website or that may otherwise be published by us on the website (as new Guidelines may be created and other Guidelines may be amended from time to time).
The Agreement becomes binding and effective for any use of our services on the date (“Effective Date”) that the Customer either:
a) Provides Openli with a written acceptance via email, print or similar method;
b) Clicks on the designated "accept" button on a web form or similar; or
c) When the Customer electronically or physically signs the Order Form or the Agreement,
The Agreement remains in force in accordance with the terms outlined in the Order Form. If an Order Form is not applicable, the Agreement remains in force until terminated by one of the parties, see section 10.
4.1 The Customer will get access to the Openli Product outlined in the Order Form.
4.2 In connection with the Customer getting access to the Openli Product, the Customer will get a business account (“Account”) where the Customer will have access to different features, dashboards, insights and information (collectively referred to as the “Openli Service” which also includes the Openli Product).
4.3 As part of the Openli Service, the Customer will have access to different widgets. The Customer accepts that Openli can change the widgets made available to the Customer, including removing, amending or replacing the wording or widget, the functionality or design at any time without any prior written notice.
4.4 If the Customer implements widgets on their website(s), the Customer accepts that cookies are set by Openli to collect statistics and data about the performance of the widgets and in order for Openli to collect consents from users on the Customer's websites on behalf of the Customer. If required by applicable laws, the Customer agrees to provide appropriate notices in accordance with applicable laws to the users about the cookies set by Openli on behalf of the Customer and obtain appropriate consent from users.
4.5 In addition, Openli will collect data and statistics relating to the Openli Service. Openli is authorised to collect general user data, aggregate conversion rates and other aggregate measures of the performance of the Openli Service. Openli may use this data and statistics for the purposes of providing analysis, reports, benchmarking data and information about the Openli Service to third parties. If the Customer chooses to use any of Openli’s widgets, it is solely the responsibility of the Customer to ensure that the widgets are implemented correctly on the Customer's website(s). As Openli does not warrant and represent the availability of the widgets, the Customer must ensure that the Customer's websites and environments that integrate or implement the widgets will not be affected in any way in case the widgets are not accessible, are discontinued or do not respond to the Customer's requests. In addition, the Customer is aware and accepts that if a widget implemented on the Customer's website(s) is no longer accessible, does not work or is discontinued, this may entail the occurrence of an empty placeholder on the Customer's websites where the widget was originally placed. The Customer accepts that the Customer has the sole responsibility for any defects on the Customer's websites caused by or arising out of the use of widgets regardless of whether such widgets are correctly or incorrectly implemented.
4.6 The Customer may be offered the option of a Free Trial, which will grant the Customer access to specific or all of Openli’s Service for free for a temporary period. The length of the Free Trial period will be described in the Order Form ("Free Trial Period"). The Free Trial Period will start on the date stated in the Order Form and continue for the Free Trial Period.
5.1 Openli may make available to the Customer certain third-party applications, services or products, which are licensed by their provider to the Customer for use in connection with Openli Service (“Third-party Products”). Openli makes no warranties of any kind and assumes no liability whatsoever for the Customer’s use of such Third-party Products.
6.1 Openli and the Customer agree to comply with the GDPR (the Regulation (EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation)) and any legislation and/or binding regulations implementing or made pursuant to it (“Data Privacy Requirements”).
6.2 The Customer is the data controller for the personal data of users who are giving or retracting consent via the Openli Service to the Customer. When providing the Openli Service to the Customer, Openli processes personal data about the users (“Users”) on behalf of the Customer and thus acts as a data processor in accordance with the Data Privacy Requirements.
6.3 The DPA, which can be found here, regulates the data processing activities to be carried out pursuant to this Agreement.
7.1 The Customer shall be obligated to (i) comply with the Agreement; (ii) comply with the Guidelines in force at any time; (ii) only use the Openli Service on the website(s) covered by the Agreement; and (iv) comply with all applicable laws and regulations with respect to its activities under this Agreement at all times.
7.2 The Customer acknowledges that Openli will have no responsibility for the Customer’s compliance with the Data Privacy Requirements.
7.3 The Customer warrants and represent the Customer owns or has an exclusive license to operate the websites(s) where Openli’s Product is implemented.
7.4 The Customer acknowledges and agrees that the Customer, and not Openli, is and will be the sole or designated "sender" of any and all messages sent or caused to be sent by Openli to Users in connection with double opt-in requirements / settings and in connection with document/consent update notifications to Users.
7.5 The Customer agrees to:
a) Provide Openli with a "from" name that accurately identifies (by individual or company name) the person or company initiating the email as the sender of such email. The Customer is responsible for keeping the "from" name up to date.
b) Provide Openli with a valid, operational return email address that (I) is routinely monitored by the Customer, and (II) remains operational for the duration of the Agreement and (III) remains operational for as long as required by applicable laws, rules and regulations.
c) If required in accordance with applicable laws and regulations, ensure that all emails contain an unsubscribe link and text that meets all applicable legal requirements, so that it is possible for recipients to request not to receive future commercial email messages from the Customer and accommodate such requests in accordance with all applicable laws and regulations.
d) Accurately describe the subject matter of the email within the "subject" header of the email so that the subject heading would not be likely to mislead a recipient acting reasonably under the circumstances.
7.6 The email must include the Customer's valid, physical postal address as well as clear and conspicuous identification that the email is an advertisement or solicitation if this is the case.
7.7 Through the Openli Service, the Customer will have access to different consent templates, text strings and policy templates. The Customer recognises that these templates are provided on an "as is" basis, and if the Customer chooses to use any of these templates it is the sole responsibility of the Customer to ensure that the template meets all applicable legal and regulatory requirements.
7.8 The Customer is responsible for all use of the Openli Service occurring under the Customer's Account. The login to the Account may not be shared. If the Customer has a need for more than one person to have access to the Customer's Account, the Customer must ensure that each person has his or her own login. The Customer and any person with a unique login to the Customer's Account must be contactable at any time via email as Openli’s systems rely on continuous user authentication via email.
7.9 The Customer warrants and represents that the Customer is entitled (including having obtained all necessary consents from the Users) to allow Openli to process this data as required in order to deliver the Openli Service and that the use of such data by Openli to deliver the Openli Service shall not breach the Data Privacy Requirements.
8.1 Openli is entitled to modify and make changes to the Agreement and Guidelines that are referred to herein or that may otherwise be published by Openli on its website(s) from time to time. The latest applicable versions will be available on Openli’s website(s).
8.2 Openli will give the Customer notice on its website(s) or via the Customer’s Account if changes are made to the Agreement or the Guidelines. The latest versions of any of these documents shall be integrated parts of the Agreement. The Customer agrees that the continued use of the Openli Service after any posted modified versions of the Agreement or the Guidelines entails the Customer's acceptance hereof.
9.1 Unless otherwise specified in the Order Form, all prices are stated in USD exclusive of VAT and other applicable taxes. Other than taxes imposed on Openli’s income, the Customer is responsible for all taxes, duties, levies, fees, or other similar charges imposed on Openli or on the Customer by any taxing authority as a result of performance under this Agreement. Any such tax shall not affect the amount owed to Openli under an invoice which shall not be subject to any deduction or withholding.
9.2 Openli is entitled to change the price for the subscription but must give the Customer 45 days prior written notice before the price change will take effect.
9.3 Payment for the Openli Service is due upon acceptance of the Agreement and will be invoiced in advance as specified in the Order Form.
9.4 In case of late payment, Openli may suspend the Customer’s access to the Openli Service with immediate effect if the Customer fails to pay any fees invoiced by Openli pursuant to this Agreement.
Suspension will not relieve the Customer of its obligation to pay such invoices or any other fees payable to Openli pursuant to this Agreement.
10.1 The Customer can discontinue its use of Openli’s Service at any time. Furthermore, unless otherwise specified in the Order Form, each party may terminate the Agreement by giving the other party 1 month’s prior notice of its intent to terminate the Agreement.
10.2 The Customer can send the notice to: email@example.com
10.3 Upon termination of the Agreement, the parties are discharged from any obligations under the Agreement (subject to section 18).
10.4 In case of termination of the Agreement, no matter the cause, the Customer is obligated to cease any use of the Openli Service from the date of termination.
10.5 Data collected by Openli on behalf of the Customer will be deleted pursuant to Openli’ data retention policy. The Customer should therefore download and export the data before closing down their Account.
11.1 The Customer shall indemnify, defend and hold harmless Openli and its respective officers, directors, employees and agents (collectively “Indemnitees”) against any liability, losses, damages, penalties, judgments, awards, settlements, costs and expenses (collectively “Losses”) suffered or incurred by any Indemnitee as a result of any third party claim, allegation, action, suit or proceeding (including any investigation or other claim, allegation, action, suit or proceeding by any governmental authority) arising from or related to any assertion that (a) the use of any content provided by the Customer (i) infringes the intellectual property rights of a third party and/or (ii) violates applicable law and/or the Guidelines; (b) the use by the Customer of Openli’s services violates the Guidelines or applicable law; (c) Openli’s use of Users data under this Agreement is in breach of the Data Privacy Requirements or contractual commitment of the Customer; or (d) any email message sent or caused to be sent by Openli on behalf of the Customer violates any applicable law, rule or regulation; (e) The Customer is or has breached any of the warranties or representations made by the Customer in this Agreement.
12.1 The use of the Openli Service is the sole responsibility of the Customer. The Openli Service is supplied "as is", it may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability, and Openli does not guarantee the general applicability or availability of the Openli Service or any data related to the Customer’s use of various integrations.
12.2 All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.
12.3 Subject to section 12.5, under no circumstances shall Openli be liable to the Customer for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising for breach of contract, misrepresentation, (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty or otherwise): (i) any loss of profits, contracts, pure economic loss, business, business opportunity, loss or corruption of data or information or recovery of data or information, depletion of goodwill, security breach resulting from a failure of third party telecommunications and/or the internet, wasted expenditure, anticipated savings or revenue (regardless of whether any of these is direct, special, indirect or consequential); or (ii) any loss or damage arising in connection with liabilities to third parties (whether direct, indirect or consequential); or (iii) any special, indirect or consequential loss or damage whatsoever, even if Openli was aware of the possibility that such loss or damage might be incurred by the Customer.
12.4 Subject to section 12.5, Openli’s total aggregate liability to the Customer including without limitation liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence), breach of statutory duty, restitution or otherwise, arising from or in connection with the Agreement, the Openli Service shall for any and all actionable circumstances be limited to the accumulated fee paid by the Customer under the Agreement during the previous 12 months prior to the actionable event.
12.5 Nothing in the Agreement shall operate so as to exclude or limit either party's liability to the other for death or personal physical injury arising out of negligence, fraud or fraudulent misrepresentation.
13.1 Either party may disclose Confidential Information to the other party during the Term of this Agreement.
13.2 “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (a) the Openli Service; (b) the terms of this Agreement including all Order Form and pricing thereto, and (d) the Disclosing Party’s strategic roadmaps, product plans, product, designs and architecture, technology and technical information, security processes, security audit reviews, business and marketing plans, and business processes.
13.3 Confidential Information will not include information that as shown by the Receiving Party’s records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
13.4 The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (a) to exercise its rights and perform its obligations under this Agreement; or (b) as otherwise required by law.
13.5 Neither party will disclose Confidential Information in violation of the terms and conditions of this Agreement to any third party without the prior written consent of the other party.
13.6 Notwithstanding the foregoing, each party may disclose Confidential Information, including the terms and conditions of this Agreement, without the prior written consent of the other party: (a) as compelled by law provided that to the extent legally permissible the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure; (b) in confidence, to legal counsel, accountants, banks, and financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; (d) the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (e) or to respond to an emergency which Openli believes in the good faith requires Openli to disclose information to assist in preventing the death or serious bodily injury of any person.
14.1 Neither party may assign and/or transfer any of their rights and obligations under the Agreement to any third party without prior written consent from the other party which may not be unreasonably withheld. Notwithstanding the foregoing, Openli may assign its rights and obligations under this Agreement in connection with a consolidation, merger, acquisition or sale of substantially all of its assets, shares or activities without the prior written consent from the Customer.
15.1 Openli may reference the Customer as a Openli customer or a user of the Openli Service in sales and marketing materials including press releases. Any Customer logo or trademark usage will be in accordance with Customer’s trademark and logo usage guidelines as provided to Openli. Upon Openli’s reasonable request, the Customer agrees to provide confidential references to either existing customers or prospects of Openli and/or to work on a case study with Openli.
16.1 The Openli Service, including any content on the Openli Service and all underlying technology (including all intellectual property rights embodied therein), is and will remain the sole and exclusive property of Openli and will be protected in accordance with applicable copyright laws and other legislation. No license to any underlying technology is granted.
16.2 If the Customer provides feedback, ideas, suggestions or comments on or regarding Openli’s websites, the Openli Service or other services offered by Openli ("Feedback"), the Customer hereby grants to Openli a perpetual, irrevocable, transferable, sub-licensable, royalty-free, worldwide license to fully exploit such Feedback for any and all purposes.
17.1 Any notice or other communication under this Agreement given by any party to any other party will be in writing and will be effective upon delivery as follows:
(a) if to the Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in an Order Form; or (ii) when sent via email to the email address specified in the Order Form or otherwise on record for the Customer; and
(b) if to Openli, when sent via email to firstname.lastname@example.org, with a duplicate copy sent via registered mail, return receipt requested, to the appropriate Openli address listed here: Attention Legal, Openli ApS, Njalsgade 21E, 5. floor, DK-2300 Copenhagen S, Denmark. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
18.1 The invalidity, illegality or unenforceability of any section (or part of a section) of the Agreement does not affect the continuation in force of the remainder of the section (if any) and of the Agreement as a whole.
18.2 The following sections shall survive termination of this Agreement; sections 10, 11, 12, 13, 14, 16, 17, 19 and 20 and any other section that by its nature is intended to survive expiry or termination of the Agreement.
18.3 If there are any discrepancies, disputes, differences or the like between the Agreement and the Guidelines, the Guidelines shall prevail.
19.1 The Agreement constitutes the entire agreement between the Customer and Openli in relation to its subject matter. It replaces and extinguishes all prior agreements, arrangements, collateral warranties, collateral contracts, statements, assurances, representations and understandings of any nature made by or on behalf of the parties in relation to the same, whether oral or written.
19.2 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
20.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Danish law. Each party irrevocably agrees that the city court of Copenhagen in the first instance shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims)