Terms of Service
These Terms of Services contain the terms and conditions that govern all use of our Website, Services, Content, Platform, Consultancy Services (all defined below) and all content, services and/or products available here through (collectively, the “Dixa Services”).
The Agreement is entered into by and between the Dixa ApS, company no. 36561009, Vimmelskaftet 41A, 1 Sal., 1161 Copenhagen S (“Dixa”) and the person or legal entity placing an order for or accessing any Dixa Services (“Customer” or “you”). If you are entering into the Agreement or using the Dixa Services on behalf of your employer or company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” is thereby a reference to your company.
BY ACCEPTING THIS AGREEMENT, EITHER BY ACCESSING OR USING A SERVICE, OR AUTHORIZING OR PERMITTING ANY AGENT OR END-USER TO ACCESS OR USE A SERVICE, YOU AGREE TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (AN “ENTITY”), YOU ARE AGREEING TO THIS AGREEMENT FOR THAT ENTITY AND REPRESENTING TO DIXA THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “SUBSCRIBER,” “YOU,” “YOUR” OR A RELATED CAPITALIZED TERM HEREIN SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. FOR THE AVOIDANCE OF DOUBT, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING. YOUR CONTINUED USE OF THE DIXA SERVICES AFTER CHANGES TO THE AGREEMENT HAS BEEN STATED AS WRITTEN ABOVE, CONSTITUTES YOUR BINDING ACCEPTANCE OF SUCH CHANGES.
You must be a minimum age of 18 to register on and use the Dixa Services. By registering and using the Dixa Services you warrant that you are 18 or older and understand your obligations under the Agreement.
Dixa may, in its sole discretion, suspend or terminate access to, or use of the Dixa Services to anyone who violates this Agreement.
If you register for a Trial Account of the Dixa Services, the applicable provisions of this Agreement shall govern that trial.
The “Effective Date” of this Agreement is the date which is the earlier of either your initial access to any Dixa Services through any online provisioning, registration or order process or (if relevant) the effective date stated in the Service Order Form.
“Customer” means the entity described as such in the Service Order Form;
“Confidential Information” means all information disclosed by or on behalf of a Party including all code, inventions, know-how, business, technical, financial, operational, organizational, legal, management and marketing information;
“Consultancy Services” means consultancy or other professional services as Dixa may provide from time to time;
“Content” means data and information available through the Dixa Services or contained within the structure of the Platform and documents, articles, presentations, pictures, images, audiovisual works, other information material, and any comments;
“Customer Data” means any data or information provided by the Customer to Dixa in connection with the use of the Dixa Services, and any other data or information which is uploaded by Customer Employees to the Platform;
“Customer Employees” means employees or individual contractors within the general workforce of the Customer and any Permitted Users (if applicable);
“Dixa” or “we” or “us” means the entity as specified in the Service Order Form or online signup form;
“Dixa Affiliates” means all direct or indirect holding companies of Dixa from time to time, and all direct and indirect subsidiary companies of Dixa or any such holding companies from time to time;
“Dixa Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, a compilation of the content, code, data, and all other elements of the Pipedrive Services;
“Dixa Services” means the Website, Services, Content, Platform, Consultancy Services, and all content, services and/or products made available by Dixa or Dixa Affiliates;
“Dixa Software” means the online software applications and programs owned by or licensed to Dixa which provide the underlying functionality and features of the Services;
“Documentation” means the Dixa Material and any other technical description of the Dixa Services and the user instructions for the Dixa Services corresponding to the Subscription to which the Customer has subscribed;
“Effective Date” means the date on which this Agreement comes into force, as specified in the Service Order Form or online service form;
“Guidelines” means the additional terms and guidelines applicable to specific features, applications, products, or services which may be made available from time to time on the Platform or otherwise through the Dixa Services;
“Service Order Form” means the ordering document, online registration, order descriptions or order confirmation referencing this Agreement;
“Party” means a contracting party of this Agreement which includes any successor in title or permitted assignee;
“Permitted Affiliates” means the entities specified in the Service Order Form;
“Permitted Users” means those employees and/or individual contractors of the Customer and any Customer Affiliates (if applicable) who are authorized by the Customer to use the Dixa Services,
“Platform” means the Dixa customer service application including the IT environment (servers, storage, networking equipment, etc.) under the possession or control of Dixa, by which means the Dixa Services are made available by Dixa to its Customers,
“Reseller” means any third-party entity that purchases Dixa Services from Dixa and resells such Dixa Services to the Customers, bills such Customers directly and provides such Customers with customer service;
“Services” the services provided by Dixa to the Customer under this Agreement via the Platform, which are made available via the Website, as more particularly described in the Documentation;
“Special Terms” means any special terms set out in the Service Order Form;
“Subscriptions” the subscriptions purchased by the Customer as specified in the Service Order Form by which the Customer is entitled to access and use the Services and the Documentation in accordance with this Agreement;
“Subscription Fees” the subscription fees payable by the Customer to Dixa for the Subscriptions;
“Subscription Term” the initial term of this Agreement as specified in the Service Order Form and each successive period of this Agreement as specified in the Service Order Form;
“Trial Account” means temporary access for the purposes of trying the Website and Dixa Services in accordance with any selected Subscription without paying full Fee; and
“Website” the compilation of web documents, images, files, etc. made available on dixa.com or its sub-domains or domains with identical names under other top domains and owned by Dixa, or any other website notified to the Customer by Dixa from time to time;
Dixa shall provide the Services and Consultancy Services during the Subscription Term and make the Documentation available to the Customer on the terms of this Agreement.
As part of the registration process, the Customer will need to create an account either through the Website or an alternative process provided by a Reseller. It is your responsibility to ensure that the information provided is accurate and not misleading. You cannot create an account or username using the names and information of another person or using words that are the trademarks or the property of another party or vulgar, obscene or in any other way inappropriate.
We will make all commercially reasonable efforts to make the Services available without interruptions. except for scheduled maintenance. The current status of the platform and the Dixa Service and overview of planned maintenance and incidents are at all times available here http://status.dixa.io, and you are able to subscribe to status updates via email and SMS notifications.
The Services may support integrations with third-party platforms. In order for the Services to communicate with such third-party platforms, the Customer may be required to input credentials. By enabling the use of the Services with any third-party platform, the Customer authorizes Dixa to access the Customer’s accounts with such third-party platform for the purposes described in this Agreement. The Customer is responsible for complying with any relevant terms and conditions of third-party platforms and maintaining appropriate accounts with third-party platforms.
Upon the Customer’s purchase of Subscriptions and subject to the terms of the Agreement (including any Special Terms), Dixa grants the Customer a non-exclusive, non-transferable and non-sublicensable right to use the Services and the Documentation during the Subscription Term.
To the extent Dixa provides mobile applications or desktop client software for use with the Services, subject to the terms and conditions of this Agreement, Dixa grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable license during any applicable Subscription Term to use the mobile app or desktop client software, but only in connection with the Customer’s use of the Dixa Service and otherwise in accordance with the Documentation and this Agreement.
The Customer may access and use the Dixa Services in accordance with this Agreement, the Documentation and any restrictions of use specified in the applicable Service Order Form. Use of and access to the Dixa Services is permitted only to Permitted Users.
If the Service Order Form specifies any Permitted Affiliates, the Customer Employees shall also include employees and/or contractors of such Permitted Affiliates, provided always that the total number of Customer Employees shall not exceed the total number of accounts permissible under the relevant Subscription, and the Customer shall be responsible and liable to Dixa in respect of all acts, omissions and defaults of such Permitted Affiliates and Permitted Users. No Permitted Affiliates or Permitted Users shall have any right to rely on or enforce any term of this Agreement.
The Customer confirms that the maximum number of Customer Employees that are authorized to access the Services shall not exceed the number of permissible accounts associated with purchased Subscriptions and no Subscription account shall be used by more than one person. The Customer may, from time to time purchase additional Subscriptions in excess of the number specified in the Service Order Form.
The Customer shall use all reasonable efforts to prevent unauthorized access to, or use of, the Dixa Services and/or the Documentation and, in the event of any such unauthorized access to notify Dixa immediately.
Trial Accounts or offer periods are offered at our sole discretion and are subject to withdrawal at any time and without notice. This Agreement applies to all trial or offer period accounts.
4. UPGRADING, DOWNGRADING OR CANCELLING SUBSCRIPTIONS
The Customer may upgrade or downgrade Subscriptions at any time.
Upgrading and downgrading comes in two forms; either by changing the subscription plan or by adding or removing agents, phone numbers, or flat rate packages.
Where a Subscription is downgraded to a lower plan, the Customer is responsible for all the data within the accounts and any loss of data caused by the downgrading and removal of any Service within the account(s) connected to the downgrade.
No refunds will be offered for downgraded Subscriptions that have been downgraded before the next billing period charge is due on the Subscription. The new, lower billing period charge will be automatically applied on the usual date of the billing period charge.
The Subscriptions can’t be downgraded beyond the minimum agent threshold, as specified in the service order form.
Where a Subscription is upgraded, the new, higher billing period charge will be automatically applied and prorated until the next usual date of the billing period charge.
The Customer may cancel Subscriptions up to 3 months prior to expiration of the then-current Subscription Term.
All inquiries regarding cancellations on any plan can be initiated via email and web support at https://www.dixa.com/support
Upon cancellation, no refunds will be provided for remaining unused days under the terms of the Subscription(s). No refund will be offered for days remaining in the cancellation period.
If access to the Dixa Services is provided through a Reseller, upgrading, downgrading and cancellation shall be agreed upon directly between the Customer and the Reseller.
5. PRICING AND PAYMENT
Each subscription with a billing period of 12 months or lower will have a subscription term on 12 months. and each Subscription Term will continuously renew for additional 12-month periods until cancelled, unless either Party gives written notice of termination at least 3 months prior to expiration of the then-current Subscription Term.
If the subscription terms are longer than 12 months according to the service order form, then the subscriptions will automatically renew for an additional equal period
The Customer shall pay the Subscription Fees to Dixa in advance based on the agreed billing period. Unless otherwise specified on the applicable Service Order Form. If the Customer gets access to the Dixa Services through a Reseller, the payment terms are set forth in the agreement with the Reseller.
The rates in the Service Order Form are valid for the initial twelve (12) month period of the Subscription Term and thereafter a 7% innovation fee is added annually to all contracts to support the continuous development of the platform, features, integrations, support and much more.
On the Effective Date the Customer shall provide valid, up-to-date and complete contact and billing details, and Dixa shall invoice the Customer for the Subscription Fees payable in respect of the Subscription Term.
When upgrading from a Trial Account, the Customer will be immediately charged for the full Subscription(s). The Subscription Fee will be due from that date each billing period onwards and advance payment will be taken in full on each anniversary.
By providing credit card information the Customer authorizes Dixa to automatically charge the Customer’s credit card on or around the same date each calendar month during the Subscription Term for all fees accrued as of that date. The Customer acknowledges and agrees that the amount billed and charged each period may vary depending on the Customer’s use of the Dixa Services and may include Subscription Fees for the rest of the period and/or non-billed fees from the previous period.
It is a condition for use of the Dixa Services that a valid debit or credit card is provided at all times in order for the Subscription to remain active. If payment is declined by the card issuer or bank (for whatever reason), the Customer remains responsible for any amounts not remitted to Dixa, and Dixa may, in its sole discretion, either (i) invoice the Customer directly for the deficient amount, (ii) continue billing the credit card once it has been updated by the Customer or (iii) terminate this Agreement. Furthermore, access to the accounts associated with a Subscription may be suspended or disabled immediately until such time as a valid payment has been processed and a valid credit or debit card is associated with the Subscription.
All amounts and fees stated or referred to in this Agreement are non-cancellable, non-refundable and exclusive of value-added tax, which shall be added to Dixa’s invoice(s) at the appropriate rate. Based on the Country of the Customer’s legal entity.
6. USAGE INSTRUCTIONS AND RESTRICTIONS
The Customer specifically agrees and confirms on its own behalf and for each of the Permitted Users not to do anything that can harm Dixa, including, but not limited to the following (non-exhaustive) actions:
- Abuse, harass, threaten, stalk, defame or in anyway seek to violate the rights of another user or third-party.
- Publish or seek to distribute any material or information that is unlawful, harmful, obscene, indecent, libelous, profane, defamatory, racist, or in any other way inappropriate or objectionable.
- Use or harvest data provided by other Dixa users in a way that they would object to.
- Encourage illegal activity or activity that violates the rights of other users or third parties, whether individuals or organizations.
- Supply or post content calculated to deliberately mislead other users or third parties, including content falsely made to appear from or be endorsed by Dixa.
- To pose as another user, third-party or organization employee for the purposes of obtaining user or third-party information.
- To transmit or transfer any viruses, trojans, worms or any other malicious programs or code intended to spy on, gain control over, disrupt, destroy or in any other way impair any computer hardware or software or any other equipment.
- Attempt to gain access to the Dixa Software, servers or other equipment in order to disrupt, impair, overload or otherwise hinder or compromise the safety, security or privacy of any of the Dixa Services or other services provided by or relied upon by users and Dixa.
- Reframe or repurpose the Dixa Services or any content on it, remove, obscure or block any notices (or advertising, if applicable) provided by Dixa on the Dixa Services.
- Load or provide access to content on the Dixa Services or link to other content from the Dixa Services, which infringes the trademark, patent, trade secret or any other proprietary right of a third-party or infringes any intellectual property law.
- Send junk or spam email or emails or posts promoting pyramid schemes, chain letters or any other activity that invites users and others to participate in wasting their time and/or money.
- Use any robot, spider, scraper or other technical means to access the Dixa Services or any content on the Dixa Services.
If the Customer or any Permitted User breach this Agreement by sending any unsolicited bulk email, spam or any other bulk communications to users that will cause harm to Dixa and to the Dixa Services. The Customer agrees to pay Dixa the sum of USD 50 for each and every individual email or other communication sent to a Dixa user or third-party. As well as risk facing legal actions from Dixa.
The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement and carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. The Customer shall ensure that the Customer Employees use the Dixa Services and the Documentation in accordance with this Agreement and shall be responsible for any Customer Employee’s breach of this Agreement.
In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Dixa may adjust any agreed timetable or delivery schedule as reasonably necessary.
The Customer shall obtain and maintain all necessary licenses, consents, and permissions necessary for Dixa, its contractors and agents to perform their obligations under this Agreement, including without limitation the Dixa Services.
The Customer shall comply with all export and import laws and regulations of the European Union, the United States  and other applicable jurisdictions. Without limiting the foregoing, (i) the Customer represents and warrants that it is not listed on any EU or U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a EU or U.S. government embargo or that has been designated by the EU or U.S. governments as a “terrorist supporting” country, (ii) the Customer will not (and will not permit any of its users to) access or use the Dixa Services in violation of any export embargo, prohibition or restriction, and (iii) the Customer will not submit any information into the Services that is controlled under the U.S. International Traffic in Arms Regulations or similar applicable regulation.
During the Subscription Term, Dixa will provide reasonable support during normal business hours within central European time (CET).
Dixa reserves the right not to provide a full technical support service to Trial Account users.
All support inquiries on Essential and the Pro subscription plan can be initiated via email and web support at https://www.dixa.com/support.
Furthermore, as part of the Enterprise subscription plan a separate Service-level agreement is included (https://www.dixa.com/service-level-agreement).
If the Customer has purchased access to the Dixa Services from a Reseller, then first-line support shall be provided by the Reseller and not by Dixa.
8. PLATFORM AND SERVICE UPTIME
We strive to make the Dixa Service available 24 hours a day, 7 days a week, and use commercially reasonable best efforts to provide 100% uptime, except for the following “Uptime Exclusions”: (i) occasional planned downtime at non-peak hours (for which we will provide advance notice); or (ii) any unavailability caused by circumstances beyond our reasonable control, including failure or delay of your Internet connection, misconfiguration by you or any third party acting on your behalf, issues on your network, major country or regional wide outages in network, connectivity or telecommunications infrastructure provided by major service and telecom providers, or telecommunications services contracted directly by you.
However, in our Enterprise Plan we offer credits if our service uptime falls below thresholds stated in the Enterprise Plan Service Level Agreement in any one month billing cycle (not including any Uptime Exclusions), you may request a credit within thirty (30) days after the month in which the uptime fell below the thresholds. Please contact your Customer Success Manager to request credit. Upon Customer’s valid request, we will provide upon customer request the stated credit against the following month’s invoice. For annual term contracts, we will provide the applicable cash refund as a credit to the pre-paid balance or a cash refund, at the customer’s discretion.
9. CUSTOMER DATA AND DATA PROTECTION
The Customer shall retain all ownership rights to the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer warrants that Customer Data do not belong to a third party whose rights have been violated by the data being posted onto to the Dixa Services. If any Customer Data is owned by a third party, the Customer agrees to pay all royalties, fines and settlements owed to that-party, without seeking any contribution from Dixa.
Dixa does not provide an archiving service and agrees only not to intentionally delete any Customer Data from any Service prior to termination of Customer’s applicable Subscription Term. The Customer is solely responsible for backing up any Content or data entered onto the Dixa Service.
The Customer can freely add content to the Dixa Services. Dixa does not monitor or assume any responsibility for Content posted onto the Dixa Services. If at any time Dixa decides to monitor the Dixa Services on any occasion it does not mean that we assume responsibility for removing any content or the conduct of any users at the time or in the future.
In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Dixa to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up maintained by Dixa. Dixa shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
By accepting this Agreement, the Customer also agrees to be data controller and to be fully authorized to manage the Customer Data in the Dixa Service. As an integrated part of this Agreement, a separate Data Processing Agreement has been entered into, which governs the terms of personal data processing.
Unless specifically agreed by the Parties by integration into the Data Processing Agreement, the Customer specifically agrees not to use the Services to collect, store, process or transmit any sensitive personal information as defined in the EU GDPR. The Customer acknowledges that Dixa is not a business associate, subcontractor or payment card processor (as defined in HIPAA and PCI) and that the Dixa Services are neither HIPAA nor PCI DSS compliant.
Dixa assumes no liability under this Agreement for sensitive personal information.
The Services may be performed using equipment or facilities located in the European Union or the United States. Dixa’s US service providers are either Privacy Shield compliant or have executed commission approved Standard Contractual Clauses that provide legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that are processed by the Customer when using the Dixa Services will an adequate level of protection, cf. EU GDPR Article 46.
10. CONSULTANCY SERVICES
Dixa shall provide the Consultancy Services as specified in a statement of work referencing this Agreement and executed by both parties describing the work to be performed, incl. fees, milestones, technical specifications or related information. The Customer shall pay Dixa the rate(s) set forth in the Service Order Form (or, if not specified, Dixa’s standard rates). The Customer will reimburse Dixa for reasonable travel and accommodation expenses.
Customer may use anything delivered as part of the Consultancy Services subject to the terms of this Agreement and the applicable statement of work, but Dixa will retain all ownership rights to such work product, code or deliverables and any derivative, enhancement or modification thereof created by Dixa.
Dixa does not warrant that the Customer’s use of the Website and the other Dixa Services will be uninterrupted or error-free nor that the Website, Dixa Services, Documentation and/or the information obtained by the Customer through the Dixa Services will meet the Customer’s requirements. Furthermore, Dixa is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data and the Customer acknowledges that the Website, Dixa Services and Documentation may be subject to limitations, delays and other problems inherent in the use of communications facilities.
This Agreement shall not prevent Dixa from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
Dixa is not responsible for any links to third-party websites from the Dixa Service and the inclusion of any link does not imply an endorsement of a third-party website or service by us.
The Customer acknowledges and agrees that Dixa has no responsibility or liability for any third-party platforms or any Customer Data exported to a third-party platform. Dixa does not guarantee that the Services will maintain integrations with any third-party platform and Dixa may disable integrations of the Services with any third-party platforms at any time with or without notice to the Customer. For clarity, this Agreement governs the Customer’s use of and access to the Dixa Services, even if accessed through an integration with a third-party platform.
12. MARKETING AND ANNOUNCEMENTS
The Customer agrees to participate in reasonable promotional and marketing activities including Dixa’s use of the Customer’s name and logo, and the disclosure of the Customer as being a customer of Dixa.
At Dixa’s request, the Customer agrees to issuance of a joint press release within 3 months of the Effective Date. Each Party shall have the right to approve the press release in advance, but such approval shall not be unreasonably withheld.
13. INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges and agrees that Dixa and/or its licensors own all intellectual property rights in the Dixa Materials, Dixa Services, the Documentation and the Dixa Software. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, design right, trade secrets, trade names, trademarks or any other intellectual property rights or licenses in, to or in respect of the Dixa Materials, the Dixa Services, the Documentation or the Dixa Software.
Dixa confirms that it has all the rights in relation to the Dixa Materials, the Dixa Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
The Parties shall keep all Confidential Information confidential, and not disclose or permit the disclosure of the same to any third party other than its or their respective personnel on a strictly need to know basis without the prior written consent of the other Party. Confidential Information shall be used only for the proper performance of this Agreement.
The Parties shall keep the contents of this Agreement and all negotiations in relation to it confidential, and not disclose the same to any third party.
The Customer shall procure that Permitted Affiliates and Permitted Users uphold the same confidentiality as stated above.
The confidentiality obligation in this clause shall not apply to any Confidential Information that:
- the receiving Party can demonstrate was known to the receiving Party or in its possession before that information was acquired from the disclosing Party;
- is commonly known by the public without fault of the receiving Party or any person on its behalf,
- the receiving Party receives from a third party that did not obtain such information as a result of a breach of a confidentiality obligation; or
- is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that the receiving Party shall inform the other Party of the disclosure (if possible) and discuss the timing and scope of such disclosure.
The receiving Party shall notify the disclosing Party promptly if it becomes aware that any of the Confidential Information falls within the above provisions.
Upon expiry or termination of this Agreement the receiving Party shall promptly return, or destroy, all Confidential Information of the disclosing Party.
The Customer shall (a) defend and indemnify Dixa and all Dixa Affiliates, subsidiaries and partners, and their respective officers, directors and employees, on-demand, from and against all loss, fines, fees, liability, claims, actions, proceedings, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Dixa Services and/or Documentation or by any Permitted Affiliate or Permitted User whether or not Customer Employees and whether or not acting in the course of their employment or engagement, provided that the Customer is given swift notice of any matter under this clause and Dixa provides reasonable co-operation to the Customer (at the Customer’s expense).
Dixa shall defend the Customer, its officers, directors and employees against any claim brought by a third party that the Services, Documentation or Dixa Software infringes any patent effective (as of the Effective Date), copyright, trademark, database right or right of confidentiality and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of any such claims, and (b) defend and indemnify the Customer, its officers, directors and employees against any third party or regulatory claims, actions, proceedings, or fines, and for any related losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees), arising out of or in connection with any breach by Dixa of its obligations under this clause provided that Dixa is given swift notice of any matter for which the Customer wishes to be indemnified under this clause, and the Customer provides reasonable co-operation to Dixa (at Dixa’s expense), and Dixa is given sole authority to defend or settle the relevant claim provided that no settlement shall be made which prejudices the Customer’s rights or places the Customer under any obligations (in addition to those in this Agreement) without the prior written approval of the Customer (such approval not to be unreasonably withheld).
In the defense or settlement of any claim, Dixa may procure the right for the Customer to continue using the Dixa Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 days’ notice to the Customer without any additional liability or obligation to pay damages or other additional costs to the Customer.
In no event shall Dixa, its employees, agents, suppliers and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on a modification of the Dixa Services or Documentation by anyone other than Dixa, or in case of the Customer’s use of the Dixa Services or Documentation in a manner contrary to the instructions given to the Customer by Dixa or in case of the Customer’s use of the Dixa Services or Documentation after notice of the alleged or actual infringement from Dixa or any appropriate authority.
16. LIMITATION OF LIABILITY, REMEDY AND DAMAGES
Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the Customer’s use of the Dixa Services, the Dixa Materials and/or the Documentation. Dixa shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts in connection with the Dixa Services, or any actions taken by Dixa at the Customer’s direction.
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 this Agreement, and the Dixa Services and the Documentation are provided to the Customer on an “as is” and “as available” basis without warranties of any kind.
Neither Dixa nor any Dixa Affiliate warrant that the Dixa Services, Content, Customer Data or other features and services will be uninterrupted and error-free and neither Dixa nor any Dixa Affiliates shall be liable in tort, contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business or goodwill or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in connection with this Agreement.
The total and aggregate liability of, collectively, Dixa and all Dixa Affiliates to, collectively, the Customer and all Permitted Affiliates and Permitted Users, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the performance or non-performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the Customer’s Subscriptions during the 6 months immediately preceding the date of the first incident out of which the claim arose.
Dixa’s services are not intended to support emergency calls to any emergency service. Neither Dixa nor its representatives or Dixa Affiliates shall be liable under any legal or equitable theory for any claim, damage, or loss arising from or relating to the inability to use the Dixa Services to contact emergency services. The Customer shall hold Dixa harmless against any and all such claims.
17. TERM AND TERMINATION
Dixa may terminate this Agreement with immediate effect by giving written notice to the other Party if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party (and not dismissed within sixty (60) days thereafter).
On termination of this Agreement for any reason within notice period, all Subscriptions under this Agreement shall terminate when current subscription term has come to an end, and the Customer shall immediately hereafter cease all use of the Dixa Services and/or the Documentation. Each Party shall return and make no further use of any equipment, property, Documentation and other items belonging to the other Party.
Any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
18. GENERAL PROVISIONS
Neither Dixa nor any Dixa Affiliate shall have any liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Dixa or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Dixa’s sub-contractors or any Dixa Affiliate’s sub-contractors, provided that the Customer is notified of such an event and its expected duration.
Amendments and waivers
Dixa reserves the right, at its sole discretion, to change, modify, add, or remove parts of this Agreement at any time by posting such changes on or through the Platform or the DixaServices. No variation, supplement, modification, or amendment of this Agreement will be effective unless it is in writing. No conduct, delay or failure to enforce or exercise rights or remedies under this Agreement or by law shall constitute a waiver. No waiver will be effective unless in a writing signed by a duly authorized representative of a Party. No provision of any business form by the Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, that provision will be limited to the extent necessary so that this Agreement will give effect to the commercial intention of the Parties. The other provisions of this Agreement shall remain in force.
This Agreement constitutes the complete and exclusive agreement between the Parties and supersedes all previous written and oral communication and agreement between them relating to its subject matter.
The Customer acknowledges that the Dixa Services are primarily digital subscription-based products, and that in order to provide such, Dixa may change the Dixa Services and/or update the Documentation from time to time as Dixa sees fit.
The Customer shall not, without the prior written consent of Dixa, assign, sub-contract or deal in any other similar way with this Agreement.
Dixa may at any time assign, transfer, charge or deal in any similar way with all or part of its rights or obligations under this Agreement.
Dixa may use the services of sub-contractors and permit them to exercise the rights granted to Dixa under this Agreement, provided that Dixa remains responsible for (i) compliance of any such sub-contractor with this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
The Parties are independent contractors. Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorize a Party to act as agent, on behalf of or otherwise bind the other Party.
Any notice or communication required to be given under this Agreement shall be in writing and shall be delivered by email or Dixa web support or sent by pre-paid first-class post or recorded delivery post to the other Party at the addresses set out in the Service Order Form or such other address as may have been notified by that Party for such purposes.
Notices delivered by hand shall be deemed to have been received when delivered. Notice sent by pre-paid post or recorded delivery post shall be deemed to have been received at the time it is delivered in the normal course of post. By email & web support when read.
19. GOVERNING LAW AND JURISDICTION
This 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 the laws of Denmark, however, excluding conflict of law principles.
In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether in contract, tort or otherwise, the Parties shall use their best efforts to resolve such dispute. The complaining Party shall provide written notice to the other Party describing in detail the dispute.
If the Parties are unable to resolve the dispute within thirty (30) days of the detailed description of the dispute, each Party is entitled to submit the matter to be resolved by the courts of Denmark. Each Party irrevocably agrees that the courts of Denmark shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Any notices regarding disputes and claims must be sent to:
Attn: Legal Department
Vimmelskaftet 41A, 1 Sal.
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