1.1 The purpose of these terms and conditions is to describe the terms of trade between the customer and SmartWeb.
1.2 The Terms and Conditions shall apply for all kinds of agreements made between the Parties—as long as the customer has accepted the Terms and Conditions.
1.3 SmartWeb reserves the right to make changes to the Terms and Conditions on an ongoing basis and without notice, provided that the updated and applicable Terms and Conditions are always made available on the SmartWeb website.
2.1 “Terms and Conditions” is defined as the present terms and conditions.
2.2 “SmartWeb” is an abbreviation for SmartWeb A/S, CBR number 29412006.
2.3 “Solution” is defined as the services and products that SmartWeb supplies to the customer.
2.4 “Subscription agreement” is used for purchases made via the SmartWeb website.
2.5 “The Parties” is used as a collective name for the customer and SmartWeb.
2.6 ”The Administration” denotes the SmartWeb Administration, which the customer can access via https://login.smartweb.dk
2.7 “Day of Handover” is defined as the day on which SmartWeb puts the customer’s Solution into operation.
3. TERMS AND CONDITIONS OF PAYMENT
3.1 General information
3.1.1 Payment must be made within eight days of the date of invoice (hereinafter referred to as the “Due Date”).
3.1.2 If the customer upgrades a product, the customer must pay the difference in price of the original product and the upgraded product for the rest of the original contract period. The upgraded product will not be billed for on its own until the next billing period. Upgrades generally happen from day to day, unless the process requires SmartWeb to perform them manually.
3.1.3 If the customer downgrades a product, the customer must still pay for the original product for the rest of the original contract period. The downgraded product will not be billed for on its own until the next billing period. The downgrade will be performed at least 30 days before the next billing period commences. Downgrades generally happen from day to day, unless the process requires SmartWeb to perform them manually.
3.2.1 If an invoice is not paid on time, SmartWeb will have the remedies provided for by the rules contained within the Danish Overdue Payments Interest Act, unless otherwise specified by the Terms and Conditions. SmartWeb will send the first reminder 10 days after the Due Date at the earliest. If the invoice is still unpaid, a second reminder will be sent 10 days after the first reminder at the earliest. SmartWeb charges a fee of EUR 14 per reminder. SmartWeb adds default interest to the principal balance at a rate of 1.5% per month from the Due Date. The interest will be added to the principal balance and will produce interest. The rules of the Danish Overdue Payments Interest Act shall also apply if the claim is transferred to a debt collector.
3.2.2 If SmartWeb has not received payment within seven days of sending the second reminder, SmartWeb can suspend the customer’s access to the Solution. The customer will not be refunded for periods where its access to the Solution has been suspended.
4. PRICES AND FEES
4.1 All of SmartWeb’s prices are provided in EURO, excl. VAT.
4.2 SmartWeb reserves the right to make price changes and shall not be liable for typing errors, discontinued products or failure in deliveries from subcontractors.
4.3 SmartWeb can regulate all of its prices and fees with a minimum of one month’s notice. The customer is obligated to pay the regulated price. However, the customer can choose to terminate the agreement in writing in accordance with the applicable terms of notice. Notified price changes will take effect from the next subscription period.
4.4 If circumstances arise that are outside of SmartWeb’s control, including legal or regulatory situations and price increases from SmartWeb’s subcontractors, SmartWeb shall be entitled to increase its prices without notice. In the event of rising energy costs, SmartWeb reserves the right to charge a corresponding energy tax to cover the increased energy expenses. SmartWeb must give the customer at least one month’s notice of such price increases and taxes.
5.1 The set-up process
5.1.1 SmartWeb will commence set-up of the Solution immediately after receiving the customer’s payment. The customer’s general right of cancellation will cease in this connection.
5.1.2 Payments made for mistakenly ordered Solutions will not be refunded.
5.2 Terms of agreement
5.2.1 The customer will receive a binding order confirmation once SmartWeb has accepted their order.
5.2.2 In order to establish an agreement with SmartWeb, the customer is required to be of age, have valid consent from a competent guardian or be a registered company. If the customer does not meet one of the aforementioned conditions, then they may not establish an agreement with SmartWeb.
6. CUSTOMER RESPONSIBILITIES
6.1 General information
6.1.1 The customer is obligated to maintain good business practices and conduct when using SmartWeb’s Solutions. Broadly speaking, “good business practices and conduct” means that the customer must not use SmartWeb’s services to break Danish laws or to otherwise impede other businesses or private individuals. If the customer is unsure of whether a certain action is permissible, it is the customer’s responsibility to contact SmartWeb and request clarification in this regard.
6.2 Master data and authorisations
6.2.1 The customer is obligated to keep their master data updated for SmartWeb such that their address, contact and billing information is always valid.
6.2.2 The customer understands and accepts that they must comply with all applicable laws and regulations in connection with the customer’s business. The customer also understands and accepts that SmartWeb exercises no control over the content of the information that the customer sends from the Solution, and that the customer is solely responsible for ensuring that the data that the customer sends and receives complies with all applicable laws and regulations.
6.2.3 The customer is obligated to produce all necessary and appropriate authorisations and approvals from all relevant third parties and public authorities which apply for the installation and use of the Solution provided by SmartWeb.
7. SPECIAL TERMS FOR CERTAIN SERVICES
7.1 OnPay payment gateway
7.1.1 The customer is responsible for ensuring that payment transfers are conducted in accordance with the rules laid down by the laws relating to payment cards and consumer protection. The customer is responsible for adjusting and setting up the payment system.
7.1.2 To be able to use the payment gateway, the customer is obligated to conclude an acquiring agreement with one of the acquirers supported on the platform. The customer is also obligated to familiarise themselves with the rules, fees and other conditions required by the acquirer in question. If the acquiring agreement is violated, SmartWeb reserves the right to limit the customer’s access to the payment system without notice. SmartWeb shall have no liability for applications to the acquiring agreement or requirements set by the acquirer in this regard.
7.1.3 SmartWeb is obligated to comply with the applicable PCI DSS security requirements for the environment (payment gateway) that processes, stores and transmits cardholder data on behalf of the customer.
7.2 Design store
7.2.1 At the time when a Subscription Agreement is concluded with SmartWeb or thereafter, the customer will have the option to purchase a design via the Design Store (hereinafter referred to as a “Design”). Purchasing a Design via the Design Store gives the customer the non-transferrable, non-exclusive rights to use the Design on the Solution. The Design can be used on the sites and language layers that the customer wants for their Solution, but it cannot be transferred to another Solution. The Design can, however, be transferred to the customer’s new Solution if the original Solution has been shut down. SmartWeb’s support can assist with this for a fee of EUR 27. If the customer wishes to use the Design on a new Solution, the customer must purchase a new Design for the Solution in question. SmartWeb does not guarantee that the customer’s Design will always be available in the Design Store and the price of the Design can vary as well.
7.2.2 The customer does not have the right to sell or otherwise transfer the Design to other parties’ Solutions or to parties outside of SmartWeb.
7.2.3 The customer has the right to customise the Design as needed. SmartWeb has the right to change the Design at its own discretion, e.g. in connection with technical updates or extensions, or if SmartWeb finds that the Design contains elements that should be considered unlawful, discriminatory, injurious etc. The customer can obtain a new version of the Design in the Design Store at any time, however, it is the customer’s responsibility to install any new updates.
7.2.4 Some Designs are supplied in cooperation with external suppliers (hereinafter referred to as “Design Store Partners”). The Design Store Partners shall retain all intellectual property rights associated with their Designs. If the customer acts in violation of the rights that the customer has associated with their Design, e.g. by reselling the Design and thereby infringing the Design Store Partner’s rights, then the Design Store Partner can instigate legal proceedings against the customer. In this context, SmartWeb is entitled to impose administrative sanctions such as changing or discontinuing the customer’s Solution.
7.2.5 SmartWeb can provide support for the Design’s functions, but it cannot assist with any technical development of the Design. If the customer would like technical development, the customer may contact the Design Store Partner, which can assist in this regard for a fee.
7.2.6 It is the customer’s—not SmartWeb’s—responsibility to ensure that the installation of a new Design does not overwrite or damage the customer’s current or previous designs or the designs of others.
7.2.7 The customer does not have the option to change their mind about Design purchases made from the Design Store.
7.3 Design and programming
7.3.1 All web design and programming jobs are carried out in accordance with good programming practices. SmartWeb shall never be held liable for any direct or indirect loss that the customer suffers as a result of the supplied product. All supplied jobs come with user rights for an unlimited period, however, they must not be copied for third parties or personal use without SmartWeb’s consent.
8. TREATMENT OF UNLAWFUL OR OFFENSIVE CONTENT
8.1 SmartWebs’s capacity to react
8.1.1 As a hosting service provider, SmartWeb provides a Solution that enables the customer to store and transmit their data. As a rule, the customer has the free right of disposition of their own data, and the customer assumes full responsibility for ensuring that the Solution is not used for any content that is illegal or infringes third party rights.
8.1.2 If a customer stores, publishes or links to text, photos, video clips, audio files or any form of information that SmartWeb can reasonably foresee as being unlawful or conflicting with the rights of a third party, then SmartWeb reserves the right to suspend the customer’s Solution without notice and without liability for compensation for any loss that the customer may suffer as a result of the suspension.
8.1.3 The aforementioned shall also be applicable if SmartWeb deems the content of a customer’s Solution to be insulting or offensive in nature.
8.2 Complaints from third parties
8.2.1 If SmartWeb receives a complaint from a third party that indicates that there is illegal content on a customer’s Solution, SmartWeb will inform the customer in question about the complaint.
8.2.2 In order to ensure its freedom from responsibility, SmartWeb is obligated to assess whether the disputed content is illegal or infringes on third party rights (Sec. 16 of the E-Commerce Act). SmartWeb will ask for and include relevant legal documentation in its assessment in so far as possible, e.g. a court order, court ruling or proof of rights ownership.
8.2.3 If in such circumstances SmartWeb can demonstrate with a reasonable degree of certainty that the customer’s Solution contains materials that are unlawful or infringe on documented rights, then SmartWeb shall be entitled to suspend the customer’s Solution without notice and without liability for compensation for any loss the customer may suffer as a result of the suspension.
9. SMARTWEB’S RIGHTS
9.1 SmartWeb has the right to make changes to products on its price and product lists at any time.
9.2 SmartWeb is entitled to assess whether the customer is using SmartWeb’s products properly. If the customer overloads their Solution so much that it has an undesirable effect on SmartWeb’s platform, then SmartWeb can temporarily disable the customer’s access to the Solution without notice at any time. SmartWeb will always aim to contact the customer in order to adjust the customer’s usage or offer the customer an alternative Solution. If the customer does not wish to adjust their usage or accept an alternative Solution, then SmartWeb shall be entitled to terminate the customer’s Subscription Agreement with one month’s notice from the first day of the month. In cases where the customer has pre-paid for a period that is interrupted by SmartWeb’s termination due to the aforementioned circumstances, the customer will be entitled to a refund of the pre-paid amount for the portion of the pre-paid period where the product was cancelled.
9.3 If a Solution is used for sending spam, phishing or similar purposes, then SmartWeb shall reserve the right to temporarily disable the customer’s access to the product without notice until the problem has be resolved. This shall also apply even if the owner of the product is not aware of such misuse or is directly responsible for it.
9.4 SmartWeb will assess the functionality of scripts/programmes/data in the Solution on an ongoing basis, which may put a strain on the servers or cause them to crash. If this is the case, SmartWeb can temporarily disable the customer’s access to the Solution in question at any time. Where possible, this will generally be done in consultation with the customer.
9.5 In cases where SmartWeb deems the components of the customer’s Solution to be outdated and to pose a security risk, SmartWeb can disable the customer’s access to the Solution in question at any time. This will, however, normally be done in consultation with the customer.
9.6 In the event of changes to legislation or regulations and authorisations adopted thereto, and in the event of changes by an authority, SmartWeb can make changes to the customer’s rights and obligations according to the Terms and Conditions without notice and the customer shall not be entitled to claim compensation of any kind.
10. SMARTWEB’S RESPONSIBILITIES
10.1 SmartWeb cannot be held responsible for verifying the validity of any restored data. SmartWeb is not liable for compensation for loss if the customer’s data cannot be restored from a backup because the data is invalid.
10.2 SmartWeb cannot be held liable to the opposite Party or a third party, including its allied companies, distributors, customers or other interested parties for compensation for any form of indirect loss or consequential damage regardless of whether the loss was due to system failure, unauthorised access, failure to deliver ordered services/products or other conditions on SmartWeb’s end..
10.3 SmartWeb shall not be liable for compensation for loss that results from the unsolicited or unwanted transmission of data to/from the customer from the Solution, or loss that results from the customer’s loss of personal data or software. Nor can SmartWeb be held liable for compensation for loss that results from unauthorised access to the customer’s data and/or systems. The aforementioned liability exemptions shall be of no effect if the loss is due to intentional acts or gross negligence committed by SmartWeb.
10.4 SmartWeb ApS shall only be responsible for the Solution. SmartWeb shall not be responsible—nor does it offer any guarantee—for the customer’s or third parties’ standard software, products, materials, tools and procedures which the customer uses with the Solution, nor does it guarantee that they are compatible.
10.5 SmartWeb strives to ensure that the systems are available 24 hours a day, all year round. However, SmartWeb is entitled to interrupt operations when necessary for handling maintenance or other technical issues. The customer will be notified of such service disruptions ahead of time in so far as possible.
11. TRANSFER OF RIGHTS
11.1 The Parties shall have the mutual right to transfer some or all of their rights and obligations in accordance with the agreement—including their right to use the supplied services—to companies affiliated with the group. The transfer of rights must not put any Party in a worse position financially or business-wise than they were before the transfer.
11.2 The customer shall not be entitled to pass on, rent out, lend or otherwise transfer their right of use of the Solution to third parties, unless otherwise agreed in writing with SmartWeb.
11.3 SmartWeb cannot transfer its rights and obligations pursuant to the Subscription Agreement to third parties without the customer’s written consent. The customer cannot refuse to give such consent for no objective reason.
12.1 Subscription agreements
12.1.1 As a rule, online orders are invoiced for either 6, 12 or 24 months in advance and renew automatically, unless the customer terminates the Subscription Agreement at least 30 days before the subscription period ends.
12.2 General information
12.2.1 SmartWeb will not refund payments if the customer wishes to terminate and discontinue their product in the middle of a subscription period.
12.2.2 All terminations must either be conducted via the Administration or in writing.
12.2.3 A termination shall not apply until SmartWeb has confirmed the termination in writing.
13.1 The Parties shall have the right to terminate the Subscription Agreement in the event of the opposite Party’s material breach of the Subscription Agreement. The customer can also terminate the Subscription Agreement if the supplied Solution has defects and these defects are not remedied by SmartWeb within a reasonable amount of time.
13.2 In the event of breach committed by one of the Parties, upon written demand, the breaching Party shall have 30 days to stop the breach. However, this shall not apply to payment obligations or conditions that cannot be established or stopped.
13.3 If the agreement is terminated as a result of breach committed by SmartWeb, the customer can use SmartWeb’s export functions to gain access to the Solution and pull the data that the customer has stored in the Solution.
13.4 SmartWeb can cancel the Subscription Agreement with the customer in writing if the customer has failed to pay an invoice. SmartWeb may also cancel the agreement if the customer has still not paid the amount due, including interest and fees, after a reminder has been sent.
13.5 If SmartWeb disables a SmartWeb distributor’s Solution because the distributor has breached the agreement, SmartWeb shall reserve the right to hand over the data from every Solution to the rightful owner of the domain.
14.1 The Parties shall be liable for compensation according to the general rules of Danish law. The total amount of compensation and any fines shall not exceed an amount corresponding to 12 months of subscription fees.
14.2 SmartWeb shall not be responsible for the following forms of loss: • Operating loss or indirect loss • The customer’s payroll costs for their own personnel and external costs of data entry of lost data and system recovery • The customer’s costs of external consultant assistance and advising • The customer’s loss of profits and/or goodwill
15. PROCESSING OF PERSONAL DATA
15.1 As part of SmartWeb’s provision of the Solution, SmartWeb will process any personal data that the customer releases to SmartWeb. The terms of such processing are regulated by a data processing agreement concluded between the Parties.
15.2 SmartWeb is obligated to take the necessary technical and organisational measures to prevent the customer’s data from being accidentally or illegally destroyed, lost or damaged, as well as measures to prevent the data from being transmitted to unauthorised persons.
16.1 The Parties shall undertake to process all information about each other confidentially. Furthermore, the Parties shall undertake to refrain from passing on such confidential information to third parties without prior written consent from the opposite Party and to only use confidential information for the purposes described in the agreement.
16.2 Any information on the Parties’ businesses, including the Parties’ partners, or business matters that the Parties have learned of through their cooperation, with the exception of information that is made public by the Parties, shall be regarded as confidential information.
16.3 The Parties are entitled to pass on information about the opposite Party to the authorities in order to fulfil legal obligations. The opposite Party is obligated to provide as little confidential information as possible, while in no way circumventing the requirements of the competent authorities.
16.4 Confidential information which is released to the customer before the time when these terms and conditions take effect shall be covered by the duty of confidentiality, which shall also apply after the Parties’ contractual relationship comes to an end.
17. FORCE MAJEURE
17.1 According to the agreement, neither Party shall be considered responsible to the opposite Party with regard to matters beyond that Party’s control and which the Party should not have been expected to take into account, avoid or overcome at the time of the conclusion of the agreement.
17.2 Force majeure delays can be claimed for no longer than the number of work days that the force majeure event lasts. If a deadline for SmartWeb is postponed due to force majeure, the payments connected with the deadline will also be postponed correspondingly.
17.3 Force majeure can only be claimed if the relevant Party has notified the other Party in writing no later than five working days after the commencement of force majeure.
17.4 The Party not affected by the force majeure situation is entitled to cancel the agreement if the agreed day of handover is exceeded by 60 days as a result of force majeure. In the event of such cancellation, both Parties shall return as soon as possible all items received from the other Party, and no further claims between the Parties shall subsequently subsist.
17.5 Cases of force majeure may be lightning strikes, flooding, natural disasters, delayed government approval or lack thereof, government intervention, acts of war, fire, armed conflict, terrorism, riots, walk-outs, strikes and lockouts, including strikes and lockouts by SmartWeb’s own employees and any subcontractors.
18. INTELLECTUAL PROPERTY RIGHTS
18.1 All intellectual property rights to the Solution such as copyright and trade mark rights, as well as rights under the Danish Marketing Practices Act, shall belong to SmartWeb. The customer shall acquire no rights of ownership of the Solution.
19. TRADE WITH FOREIGN COMPANIES
19.1 For trade with companies within the EU, where SmartWeb does not collect VAT, the customer shall be obligated to provide SmartWeb with a valid VAT number at all times. By law, SmartWeb is obligated to submit lists of its foreign sales to the Danish authorities. If SmartWeb is charged for the settlement of VAT as a result of an invalid or incorrectly entered VAT number, SmartWeb reserves the right to bill the customer for this expense.
20.1 The present Terms and Conditions shall be interpreted in accordance with Danish law.
20.2 The Parties shall undertake to reach an amicable settlement of conflicts through negotiation and shall strive to do so in a manner that does not affect the Parties’ other production and services.
20.3 Where an amicable settlement cannot be reached through negotiation, the case shall be settled with final binding authority by arbitration according to the rules of the Danish Institute of Arbitration or by a Danish court of SmartWeb’s choice.
21.1 If the customer wishes to submit a complaint to SmartWeb, they may do so by sending an email to firstname.lastname@example.org