1. General Terms
1.1 The terms and conditions will apply to all delivery of operating services from Kontainer to the customer.
1.2 The agreement between Kontainer and the customer consists of the following documents of agreement:
– Data Processing Agreement
– The general terms and conditions for Kontainer SaaS /Terms and conditions)
1.3 All documents regarding the agreement, cf. section 1.2, must be interpreted together as the parties’ collective agreement.
If the parties have agreed on specific terms regarding Kontainer SaaS, this must be specifically stated in the Quote Document to be agreed upon. These general terms and conditions of operation shall take precedence over other contract documents except for any specifically agreed terms in the Quote Document that take precedence over the Terms. Any stipulations in the Kontainer sales material, etc., which are not repeated in the Agreement documents, are not binding on the Parties. However, the data processing agreement takes precedence over the regulation of Kontainer processing data on behalf of the Customer.
2.1 In the agreement the following definitions are valid:
The Agreement is understood to mean the Parties’ full agreement consisting of the Agreement Documents.
The term Agreed operation time is understood to be 24/7 unless otherwise has been agreed in the Quote.
The term Agreement Document(s) is understood to be the documents mentioned in section 1.2
The term Agreed support hours is understood to be from 8 am to 5 pm CET for Eurepean-located clients and from 8 am to 12 pm-midnight CET for all other locations.
The term Payment Period is understood as a period that the customer has already paid for to be able to access Kontainer SaaS.
By Kontainer is meant Kontainer A/S (CVR number: 38683268), Studiestraede 19, 4 floor., 1455 Copenhagen, Denmark.
Kontainer SaaS means the software platform that is made available to the Customer in accordance with the Agreement.
Operating Environment means the hosting environment where The Kontainer SaaS Software is installed and operating from.
The Customer means the customer specified in the Quote Document as a customer with any associated companies.
Downtime means periods within the Operating Hours, where the Operating Environment is unavailable except for notified “Service windows”.
The Parties means Kontainer and the Customer. Kontainer and the Customer may be referred to collectively as the Parties and also individually as one Party.
SLA (Service Level Agreement) means any agreed service goals mentioned in the Quote Document.
The Quote Document means the selected Kontainer plan and features, agreed upon operating time and prices with possible SLA.
The Terms and Conditions are understood as the general conditions of operation, which is an integral part of the Agreement.
3. SaaS (Software as a Service)
3.1 Kontainer is required to provide the SaaS services to the Customer with agreed features and capacity, which are specified in the Quote Document. Additional services are purchased through supplementary agreements. The supplementary agreements should be regarded as an integral part of the Agreement. The terms of the Agreement will also apply to the supplementary agreements.
3.2 Kontainer will aim to always make the Operating Environment available to the Customer. If the Parties have agreed on specific SLAs regarding the Operating Environment, this will be stated in the Quote Document. Kontainer is entitled to temporarily suspend the Customer’s access to the Operating Environment in connection with bug fixes, preventive maintenance or security updates related to the Operating Environment. Kontainer strives to ensure that the period during which access to the Operating Environment is closed is as short as possible. Downtime in the Operating Environment, which has been notified to the Customer with at least 3 days prior written notice, for the purpose of preventive maintenance and security updates (service windows), is not included in the calculation of Downtime. Similarly, Downtime due to emergency service, which is notified with 1 hours’ notice, is not included in the calculation of Downtime. Emergency service will typically be service caused by urgently recommended security patches recommended by third-party vendors.
4. Customer use
4.1 The Customer may dispose of Kontainer SaaS with respect to the Agreement. The Customer’s organization and administration of data in the Operating Environment is the Customer’s responsibility.
4.2 The Customer must take all reasonable precautions to ensure that the Customer’s use of Kontainer SaaS complies with applicable law and third-party rights. The Customer’s use must comply with good IT practices on web applications and general IT and internet behavior and secure that persons granted rights to the Customer’s operating environment do not upload viruses, malware or any other files or software that may affect Kontainer SaaS.
4.3 Kontainer may at any time request the Customer to delete certain files or data in Kontainer SaaS, to which the operation in Kontainer SaaS may give rise to Kontainer being sued by a legal infringement case or otherwise subject to sanction or liability to third parties. Similarly, Kontainer may at any time request the Customer to delete any software or files affecting Kontainer SaaS (This may be, for example, malware, etc.). If the Customer does not immediately comply with Kontainer’s request, Kontainer is entitled to delete the files in Kontainer SaaS without the Customer’s participation.
4.4. Kontainer must refrain from being expected to deal with disputes between the Customer and third parties/authorities. If third parties or authorities make claims against Kontainer as a result of the Customer’s use of the Operating Environment, the Customer must take over the handling of the case against third parties and indemnify Kontainer for any loss in this connection. Kontainer may also request the Customer to provide security for a potential loss for Kontainer selected by Kontainer as a result of claims against Kontainer regarding the Customer’s use of the Operating Environment.
5.1 Kontainer provides support in accordance with the agreement in the Quote document for Kontainer SaaS within Agreed support hours. For standard support agreements this is understood to be from 8 am to 5 pm CET for European-located clients and from 8 am to 12 pm-midnight CET for all other locations. Outside the agreed operating hours, reference is made to the 24-hour service, which, by payment of consultancy hourly prices can provide regular support regarding the Operating environment unless a separate SLA includes this. The hourly rate is at all times applicable to Kontainer’s hourly rates, agreed in the Quote Document.
6.1 Kontainer risk management is based on a documented and regularly updated risk and vulnerability assessment of Kontainer SaaS. Kontainer conducts ongoing risk assessments of current risks, including changes in Kontainer’s organizational conditions or impending changes in technology and infrastructure. Kontainer SaaS is thus protected with reasonable and up-to-date protection against illegal electronic or physical intrusion, vandalism, theft, hacker attacks, computer viruses and other similar security breaches that may endanger Kontainer SaaS or give unauthorized access to Kontainer SaaS.
Kontainer technical setup is following:
– External Ddos filter there will handle all ingoing traffic and mitigate packets
– Next-generation firewall with packet inspection
– Separate networks for incoming traffic, worker cluster, storage cluster and application communication.
– Secured proxy servers there separate the traffic to the specific data sources.
– Encrypted data lines for incoming traffic
– All servers are in a redundant setup
– There are 2 datacenters with data replication and failover
– Backup runs each night with 90 snapshots back in time
6.2 Kontainer has a dedicated technical team that daily checks all logs and alerts from the hosting infrastructure and the Kontainer SaaS application.
6.3 Kontainer annually documents its compliance with safety and quality standards through an ISAE 3402 Statement of Assurance related to all Kontainer SaaS operations.
6.4 If a breach of security is detected, the Customer will be informed immediately and not later than 24 hours after Kontainer has been informed of the breach, with a full description of the breach and the consequences thereof, so that the Customer can fulfill its obligations to notify those who is entitled to notification within the time limits which the Customer is obliged to comply with.
7. Monitoring and reporting
7.1 Kontainer monitors and logs the operation of Kontainer SaaS. Furthermore, Kontainer monitors security risks, solving errors related to Kontainer SaaS.
8. Guaranteed accessibility (SLA)
8.1 The Parties have stated in the Quote Document whether Kontainer guarantees accessibility to the Operating Environment. The parties may agree on the following accessibility level:
Standard: Guaranteed availability: 99,9 %
8.2 If guaranteed availability is agreed upon with extended reporting in the Quote Document, Kontainer shall measure overall availability in the Operating Environment, within the Scheduled Operating Time and calculate a monthly availability percentage (T%) as follows:
( (Agreed opterating time – Unavailability in the Agreed operating time) / Agreed operating time ) x 100
8.3 If the Parties in the Quote Document have agreed to a guaranteed availability, Kontainer shall pay a penalty if the agreed service objectives are breached. The penalty is calculated for each starting reduced amount of 0.10% point measured at T% for one month, a penalty of 2.5% of the monthly payment for Kontainer SaaS is calculated. The fine cannot exceed 50% of the monthly payment for Kontainer SaaS. In addition, the total penalty amount is maximized in accordance with the maximum specified in section 16.1.
9.1 The Parties are obligated to keep all materials and information exchanged between the Parties in the course of the negotiations and subsequent cooperation in strict confidence and in no way disclose such information, or any part thereof, to third parties. If the Parties may be in dispute or other conflict situation, the Parties undertake to keep this strictly confidential.
9.2 Notwithstanding the foregoing, Kontainer is entitled to use the Customer as a reference, unless the Customer requires Kontainer to refrain from referring to the Customer.
1.3 The Customer and Kontainer agree that this section 9 constitutes an independent agreement between the Customer and Kontainer, which is valid for 3 year after the termination of the Agreement.
10.1 Kontainer retains its rights to Kontainer SaaS. The customer’s access to Kontainer SaaS is thus limited to a right of use in accordance with the terms of the Agreement, which is limited to the period to which the Agreement applies.
10.2 The Customer retains its full rights to all content, files, data etc. Kontainer thus receives no rights to the Customer’s data or other material. However, Kontainer may grant withholding rights in the Customer’s data or other material, should the Customer breach its obligations under the Agreement.
11. Personal data
11.1 The Customer is responsible for the processing of personal data in Kontainer SaaS. Kontainer is a data processor, and Kontainer only processes personal data according to instructions from the Customer. The parties have entered into a Data Processor Agreement regarding Kontainer’s processing of personal data for the Customer. The Data Processor Agreement is part of the Agreement Documents.
11.2 The Customer must ensure that the Customer’s processing of personal data in the Operating Environment complies with applicable legislation regarding the processing of personal data. Kontainer shall implement appropriate technical and organizational security measures to prevent personal data from being accidentally or illegally destroyed, corrupted, disclosed, transmitted or otherwise compromised in accordance with Danish law on the processing of personal data.
11.3 The Customer has specified in the Data Processing Agreement which categories of information the Customer processes in the Operating Environment. The Customer declares that the Customer has technically and organizationally taken the necessary security measures and that the level of security purchased in the Agreement is sufficient in relation to the Customer’s risk assessment in relation to the nature of the Customer’s processing of personal data. It is the Customer’s responsibility to comply the Customer’s organizational and technical security level in the Customer’s Operating Environment also if the Customer has to change its risk assessment regarding the Customer’s processing of personal data in the Operating Environment. The customer is obliged to immediately notify Kontainer of any need for additional security in the Operating Environment. Kontainer is entitled to adjust the agreed remuneration in accordance with the changed security requirement.
11.4 The Customer shall indemnify Kontainer for any loss or reimbursement that Kontainer may be required to pay as a result of the Customer’s processing of personal data in the Operating Environment, unless the Customer can prove that the damage was caused intentionally or grossly negligent by Kontainer or Kontainer employees.
11.5 Kontainer assists – considering the nature of the processing – the Customer by fulfilling the Customer’s obligation as a data controller to contact the regulators and respond to inquiries from supervisors or requests for the exercise of data subjects’ rights, as provided by the Data Protection Regulation. The Customer shall bear all costs associated with this assistance, unless otherwise explicitly agreed in the Quote Document. The assistance provided by Kontainer to the Customer must be paid at the current hourly rates agreed in the Quote Document.
12. Pricing and terms of payment
12.1 Pricing for the Kontainer Saas services is stated in the Quote Document. Prices are shown excl. VAT.
12.2 Unless otherwise explicitly stated in the Quote Document, license prices can be adjusted due to cost regulation. Kontainer SaaS price adjustment must be notified to the Customer at least 4 months before initiation. The customer is entitled to terminate the Kontainer SaaS agreement at any time based on price regulations, however with a minimum of 1 month’s notice.
12.3 Billing of the Customer for the Kontainer Saas services is done for a Payment Period. A Payment Period constitutes 1-, 3-, 6- or 12-months’ remuneration, agreed in the Quote Document. The customer is obliged to pay within 30 days of receipt of the invoice unless another agreement is set in the Quote Document or Agreement. With any late payment, Kontainer is entitled to an interest rate of 2% invoice amount per. month from the last due date of payment until payment is made. Kontainer is also entitled to temporarily close the Customer’s access to the Operating Environment if, after three payment requests and repeated reminders, the Customer has not paid an invoice from Kontainer.
12.4 Any other services, such as consulting services or changes, will be invoiced in accordance with the agreement.
13.1 Kontainer is entitled to use subcontractors for the provision of Hosting Services under the Agreement, and the Customer hereby generally consents to use subcontractors for the delivery of the Kontainer Saas Hosting Services, as specified in the Data Processor Agreement.
14. Force majeure
6.1 In case of force majeure, a Party’s obligations under the Agreement shall be suspended as long as the force majeure situation persists to the extent that the Party’s fulfillment of the obligations is prevented by the force majeure situation.
6.2 Force majeure covers matters of a particularly qualified nature that are beyond the control of the Party and which the Party should not have taken into consideration prior to the conclusion of the Agreement, nor should it have avoided or realized after the conclusion of the Agreement. The following conditions are considered, inter alia, as force majeure:
Lightning, flooding, fire, overload or failure of internal and external grid connections, Strike or other work conflict with the Customer or the Supplier.
If a force majeure situation lasts for more than 30 days or if the force majeure situation is of such a nature or duration that the performance of the Agreement may be deemed impossible, the other Party shall be entitled to terminate the Agreement in its entirety or partly. Neither party can make a claim on this occasion.
15. Limitation of liability
15.1 The liability of Kontainer is limited to direct loss and Kontainer is not responsible for lost revenue, loss of production, loss or recovery of data, defective data, destruction of data, increased use of internal or external resources, loss of reputation or goodwill or other indirect damage /loss. Kontainer’s total liability under the Agreement is limited to an amount corresponding to remuneration for twelve (12) months for the Kontainer SaaS license and to an amount corresponding to remuneration for three (3) months for the tainer SaaS license per. replacement-relevant event. Any penalty amounts, cf. section 8, are included in the calculation of the compensation under the Agreement.
15.2 Unless otherwise expressly agreed in the Quote Document, Kontainer shall not be liable for any loss incurred as a result of system breakdowns, power failures, unauthorized access, disruptions, changes due to technical or operational reasons, including errors and defects in Kontainer SaaS, hardware or unforeseen and unauthorized persons, conditions imposed by regulators.
15.3 Kontainer is not liable for defects and the Customer is not entitled to a proportionate refusal of defects, unless the Customer has previously claimed Kontainer, and Kontainer has not been able to remedy the defects after reasonable notice of not less than 10 days from the date of Kontainer’s receipt of Customer requirements.
16.1 One Party may, with binding effect for the other Party, notify the address, including the e-mail, specified in the Quote Document.
17.Duration of Agreement
17.1 Unless otherwise agreed in the Quote Document, the Agreement shall enter into force upon signature. The Agreement will continue until terminated in accordance with sections 17.2 or 17.3 below.
17.2 The Customer may terminate this Agreement at any time with a notice of one month to terminate at the end of a month, and the Agreement may be terminated at the earliest after three months.
17.3 Kontainer may terminate the Agreement if the Customer materially defaults on its obligations under the Agreement, including if the Customer, after a third claim for payment, has not paid due consideration under the Agreement.
18.1 Kontainer is obliged, upon all or partial termination of the Agreement, for whatever reason, to assist the Customer in a reasonable and necessary manner in connection with the Customer’s return and/or the Customer’s transfer to other suppliers. Assistance must be provided as soon as possible and, as far as possible, before the date of cessation.
18.2 Kontainer’s consultancy assistance in connection with the termination of the Agreement will be settled at Kontainer at all times applicable hourly rates for consultancy services. Kontainer is entitled to demand prepayment of its consultancy assistance to the Client, if this is reasonably justified by the Client’s circumstances, for example as a result of the Client’s failure to pay and await with his assistance under section 18.1 until payment for the consultancy assistance and any other amount due to the Kontainer SaaS services are received.
18.3 Unless otherwise agreed, the Customer’s data and files are deleted in the Kontainer SaaS Environment when the Agreement terminates.
19. Choice of law and venue
19.1 The agreement and its interpretation shall be determined by Danish law and by the Danish courts.
19.2 The venue is Copenhagen, Denmark.