biites COMMERCIAL TERMS (OCTOBER 12 2018)
1. Scope of Application and Validity
1.1 These Commercial Terms (hereinafter the “Terms”) shall apply in relation to any service provided by biites ApS, Vandtårnsvej 62A, 1. E., DK-2860 Søborg, Denmark, CVR no. 38660756 (hereinafter “biites”), unless otherwise explicitly agreed in writing.
1.2 The Terms have been accepted by the Customer if the Terms have been attached to an offer from biites; if the offer includes a reference to the Terms and the offer has been accepted by the Customer; or if the Customer in any other way has accepted the Terms.
1.3 Even if biites does not at a later time refer to these Terms in an offer, an order confirmation, an agreement or other types of correspondence, the Customer accepts that the Terms shall apply to any service provided, cf. clause 1.1.
1.4 If the Customer wants to apply its own terms of purchase, terms of supply or any other terms, this requires biites’ prior acceptance in writing. Any reference to such terms in the Customer’s acceptance of biites’ offer does not constitute a qualified acceptance, as a reference to the Customer’s own terms will have no legal effect in relation to biites.
2. Services and Content
2.1 biites provides a video platform (hereinafter the “Service”), where businesses and public and private organizations, subject to paying a fee, can publish high-quality, Customer branded video content (hereinafter “Content”) on www.biites.com.
3. Offer and Formation of Contract
3.1 All offers are valid for fourteen (14) days from the date of the offer, unless otherwise explicitly written in the offer.
3.2 The Customer can accept an offer by sending an email to biites or by uploading the Content to the Service (hereinafter the “Confirmation”).
3.3 Unless otherwise agreed, the Terms and the Confirmation represent the total contractual basis between biites and the Customer (hereinafter the “Agreement”).
4. Payment and Terms of Payment
4.1 Upon biites receiving the Confirmation from the Customer, biites will invoice the Customer according to the Agreement.
4.2 All prices are exclusive of VAT.
4.3 biites’ invoices fall due within eight (8) days of the invoice date. Unless otherwise agreed biites invoice in DKK.
4.4 Any past due, unpaid amounts will carry interest of 1.5% per month or fraction of a month. In addition, biites is entitled to charge a reminder fee pursuant to Section 9 b(2) of the Danish Interest Act, currently DKK 100 for each reminder letter. In case of overdue payment, biites is furthermore entitled to charge a compensation fee pursuant to Section 9 a(3) of the Danish Interest Act, currently DKK 310.
4.5 If biites has any unpaid and outstanding invoices, biites is entitled to suspend any delivery of Services to the Customer until payment has been received in full.
4.6 The Customer is not entitled to set-off or withhold any part of the purchase price due to counterclaims.
5. Availability of the Service
5.1 biites intends the Service to be available 24/7. Availability of the Service will be minimum 99.0% measured over a quarterly period. The Service are defined as being available as long as users are able to access and stream Content from the Service.
5.2 In order to maintain and update the Service, biites will from time to time plan and execute maintenance work, where the Service may be unavailable. Where biites has announced such maintenance work at least 24 hours in advance, this unavailability does not affect the measured target availability.
5.3 The Customer shall have no remedies or claims against biites for the unavailability of the Service, including without limitation the right to claim for compensation, proportionate reduction, the right to terminate the Agreement for breach or any other remedy.
6. Customer’s Obligations
6.1 The Customer warrants that the Customer holds the required rights to the Content in order to use it with the Service, including but not limited to, scripts, music and actors,
6.2 Content uploaded by Customer shall at all times adhere to biites’ ethical guidelines, which may change from time to time. biites reserve the right to remove any content not adhering to biites’ ethical guidelines.
6.3 Customer shall provide biites with Content formatted according to biites’ technical specifications, which may change from time to time.
7. Rights to the Content
7.1 The Customer retains all ownership rights to the Content.
7.2 Upon uploading Content to the Service, the Customer grants:
7.2.1 biites: a worldwide, non-exclusive, royalty-free right to use the Content in the agreed geographical areas and in connection with the provision of the Service.
7.2.2 Each user of the service: a world-wide, non-exclusive, royalty-free right to access the Content through the Service.
7.3 The above rights to the Content are terminated when the Agreement is terminated, or the Content is removed from the Service.
8. Intellectual Property Rights
8.1 By actual payment of the agreed fees, the Customer acquires a worldwide, non-exclusive, royalty-free right to use the Service to make the Content available through www.biites.com for the term agreed in the Agreement.
9.1 In case of material breach, the non-breaching party may terminate the Agreement with immediate effect, provided that the non-breaching party has given the breaching party a deadline of at least ten (10) weekdays to remedy the material breach and no remedial action has been taken before expiry of the deadline.
10. Liability and limitation of liability
10.1 With the limitations specified in these Terms, the parties are liable in damages towards each other pursuant to the ordinary rules of Danish law.
10.2 Unless biites has acted gross negligently or with intent, biites is never liable in damages for financial consequential losses, business interruption, lack of savings, loss of profits, goodwill, image, loss of data or costs to restore data, software or indirect loss.
10.3 biites’ liability in damages is furthermore, in any circumstances and regardless of the degree of negligence, limited to the lowest amount of either: 1) the value of the total consideration paid by the Customer to biites during the twelve (12) months preceding the claim for damages, or 2) DKK 100.000.
11. Force majeure
11.1 biites shall not be liable towards the Customer if such liability is caused by circumstances outside biites’ control, including war and mobilisation, Acts of God, strikes, lockouts, fire, extreme weather, breakdown of electricity or telecommunications network, delayed or defective deliveries from sub-suppliers, damage to production facilities and cyber-attacks, which biites should not have taken into account or could not have avoided or overcome by taking reasonable action.
11.2 If biites is prevented from fulfilling the Agreement due to force majeure, the Agreement will be suspended for the period of time such force majeure event exists. If the force majeure event exists for more than three (3) months, the Agreement may be terminated by either party with fourteen (14) days’ written notice, without the parties being entitled to claim damages towards each other.
12.1 The parties are mutually obliged to keep confidential all information about the other party in the nature of trade secrets and which are not generally known to the public. The parties agree that information about the other party’s prices and customers is always considered trade secrets.
12.2 Regardless of clause 12.1, biites is entitled to use the Customer’s name and trademark as a reference for marketing purposes.
12.3 The duty of confidentiality shall apply without limitation in time and shall continue after the other parts of the Agreement have terminated.
13.1 The rights and obligations in this Agreement cannot be assigned to a third party without the other party’s written consent, unless such assignment is in the form of a merger, where all or significant parts of the party’s assets and liabilities are assigned. biites may, however, freely assign its rights and obligations pursuant to the Agreement to biites subsidiaries or associated companies.
14. Amendments and separate terms
14.1 Any amendment of the Terms must be in writing.
14.2 Amendments of the Terms must be notified by biites with a prior notice of three (3) months. If the Customer cannot accept the amendments given notice of, the Customer may terminate the Agreement with a notice of sixty (60) days. The termination does not become effective if biites at the latest thirty (30) days after receipt of the Customer’s notice of termination has revoked the amendments towards the Customer.
15.1 Any dispute between biites and the Customer shall be settled pursuant to Danish law, without regard to any principles of private international law specifying any other choice of law.
15.2 Disputes shall be settled, at biites’ choice, by the Maritime and Commercial Court in Copenhagen, in the alternative by the Copenhagen City Court or by an arbitration tribunal appointed by the Danish Institute of Arbitration pursuant to the “Rules of Arbitration Procedure of Danish Arbitration (Copenhagen Arbitration)”. Each party shall appoint an arbitrator and the chairman of the arbitration tribunal shall be appointed by the Copenhagen Institute. If a Party has not appointed an arbitrator within thirty (30) days of having respectively requested or received notice of the arbitration, such arbitrator shall also be appointed by the Institute in accordance with the above-mentioned provisions.
15.3 Regardless of the above, biites may, however, always determine that a dispute is to be settled in the Customer’s home court.