Last updated: July 5, 2016
1.1. These Business Terms shall apply to Peakon ApS’ (hereinafter ”Peakon”) provision of employee engagement services to customers (hereinafter the ”Customer”) unless otherwise agreed in writing. Peakon and the Customer shall also each be referred to as a “Party” and jointly the “Parties”. The services shall be provided under a subscription structure pursuant to these Business Terms.
2. Contact with Customer
2.1. The Customer shall appoint a person to be in charge of the contact with Peakon. Such person shall handle all practical arrangements for which the Customer is responsible during the subscription term.
3. Subscription term and fees
3.1. The Customer subscribes to the services provided by Peakon for an initial period of 12 months and at the same time acknowledges that the subscription has an initial pre-payment feature for one full year of service to be paid prior to the commencement of the 12 months subscription period. No part of the pre-payment for the initial 12 months will be refundable in the event of the Customer’s cancellation during the initial 12 months period. At the end of the 12 months period, the subscription will be automatically extended for rolling periods of one month each until cancelled by the Customer and the payment will automatically be charged for each successive monthly period at the then-current subscription rate. Upon expiry of the initial period of 12 months Peakon is, at any time and at Peakon’s absolute discretion, entitled to amend the subscription rates without prior consent from the Customer. Peakon shall provide the Customer with a 4 weeks’ notice before implementing such adjustment.
4. Terms of payment
4.1. After the initial pre-paid 12 months period Peakon shall invoice its services monthly. Invoices shall be payable within 14 days of the invoice date.
4.2. Peakon shall be entitled to charge interest from the Customer if payment to Peakon is past due. The rate of the interest is the highest rate permissible under the applicable law. The interest shall accrue from the due date until the actual date of the payment.
4.3. If the Customer has not paid the amount due Peakon shall be entitled to immediately discontinue the services by notice in writing to the Customer.
5. Exchange of information and confidentiality
5.1. Information relating to the Parties that is exchanged between Peakon and the Customer in connection with the services provided shall be confidential information.
5.2. Each Party shall keep secret such confidential information and shall exercise the same degree of diligence as exercised in relation to its own confidential information.
5.3. Neither Party may disclose or in any other way make confidential information available to any third party without the written consent of the other Party.
5.4. Upon expiry of the subscription period, Peakon shall return any and all material received from the Customer if the Customer so requests.
5.5. Peakon shall be entitled to file material on the services in question for the internal purpose of continued development of Peakon’s products and shall be entitled to use the Customer’s name as reference for the purposes of marketing, submission of offers, etc.
6. Rights in product and material
6.1. All copyright and any other intellectual property rights, including any employee engagement analysis software downloaded by and installed with the Customer, in the product developed in connection with the services provided shall be accorded to Peakon. The Customer shall be granted only a right of use as well as property rights to any material physically handed over.
6.2. The Customer may conclude a separate agreement with Peakon on extension of the permission to use the material received in return for payment of an additional charge, including the possibility to reproduce the material and use the material for marketing purposes. In case of such use, the Customer shall ensure that the fact that the material has been prepared by Peakon is clearly stated.
6.3. If the Customer does not conclude a separate agreement with Peakon as specified in Clause 6.2, the Customer may use the material prepared by Peakon for internal purposes only and may not disclose, change or copy the material, upload it on the Customer’s website or social media or in any other way reproduce such material.
7. Postponement/cancellation by the Customer
7.1. Up until 4 weeks prior to the date scheduled for commencement of the subscription, the Customer shall be free to cancel or postpone the subscription without having to pay for the services agreed. The Customer shall, however, pay Peakon for the time spent until the time of cancelling, e.g. in relation to planning, analysing and scoping, and the Customer shall cover any costs already incurred.
7.2. In the event that the Customer cancels or postpones the subscription at a date later than 4 weeks prior to the commencement date scheduled, 10% of the initial 12 months subscription fee, cf. Clause 3.1, shall be charged to the Customer. Furthermore, the Customer shall cover any and all costs already incurred.
8. Warranty and downtime
8.1. Peakon provides no warranties whatsoever in relation to and shall not be liable for any software applied and installed with the Customer.
8.2. The Customer’s use of the service is at the Customer’s sole risk. The services are provided on an "AS IS" and "AS AVAILABLE" basis. The service are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
8.3. Peakon, its subsidiaries, affiliates, and its licensors do not warrant that a) the services will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the services are free of viruses or other harmful components; or d) the results of using the services will meet your requirements.
8.4 Notwithstanding Clauses 8.1-8.3 the Customer is entitled to claim compensation from Peakon if the services provided are unavailable (downtime), for reasons attributable to Peakon, for more than 1% of the time of a calendar month. The compensation shall be calculated as 10% of the monthly fee payable according to Clause 3 for each 1% downtime unavailability. The compensation can, however, not exceed the monthly fee for that period. The compensation, if claimed and awarded, will be set-off against future service invoices and will not be paid in cash.
9.1. In the event of a Party’s breach of the subscription or these Business Terms, the general rules of Danish law shall apply.
9.2. Any claim for damages as a result of breach by Peakon shall in no event exceed an amount corresponding to the fee agreed to be paid by the Customer for the initial 12 months’ subscription. Peakon shall not be liable for the Customer’s operating loss, loss of profits or any other indirect loss. It is specifically stated that Peakon shall not be liable for any late delivery or erroneous analysis or report etc. due to facts attributable to the Customer and/or its employees.
9.3. In the event that the breach by a Party is due to factors beyond the control of such Party (force majeure), the Party shall not be liable for such breach.
10. Governing law and venue
10.1. Any dispute between Peakon and the Customer arising out of or in connection with the subscription or these Business Terms shall be subject to Danish law and the jurisdiction of the City Court of Copenhagen.