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VER02-07.06.2019

RushFiles A/S – Terms and Conditions

(Resellers on SaaP & SaaS solutions, rev. 07. June 2019)

The Parties

These terms and conditions ("Terms") applies to all agreements entered into between RushFiles A/S, CVR no.: 34623422, and a reseller of RushFiles A/S’ software platform RushFiles ("Software"), services connected hereto ("Services") and the utilisation of the Software and Services, disregarding whether the Software and Services are utilised on a “Software as a Service (SaaS) solution” or “Software as a Product (SaaP) solution”. The Software and Services and any other services rendered in connection hereto is hereinafter jointly referred to as "RushFiles".

The employee(s) at the reseller entering into the agreement regarding RushFiles and thus also these Terms guarantees that he/she has the necessary authority to bind the reseller.

The users who use RushFiles can be employees and internal users of the reseller as well as partners, consultants and customers of the reseller, also referred to as "external users".

The reseller shall guarantee that internal users as well as external users are familiar with the Terms and that the utilisation of RushFiles are in accordance with the current Terms.

Content of RushFiles

The Software is a service that provides the end user the option of accessing data/files (stored in encrypted form) via the internet from the users' various devices such as stationary and laptop computers as well as mobile devices.

RushFiles is a service that is supplied "as-is" and "as-available" with the sole purpose of assisting with the handling and sharing of files. The functionalities and usage of the Software is described on www.rushfiles.com. The reseller shall bear the sole responsibility of assessing the appropriateness of whether the content and usability of RushFiles meets the reseller’s needs.

In order for users to use RushFiles, the user must install the Software which can be downloaded from https://rushfiles.com/download-client-applications. The same goes for resellers using a SaaP solutions which Software must be installed in the reseller’s or third party’s IT environment.

Before the Software is downloaded, installed and RushFiles used, the reseller and users must have reviewed the technical minimum system requirements and considered these to comply with the reseller’s and user’s operating environment. Inadequate system requirements or insufficient storage capacity will influence the performance of RushFiles. More information on this can be obtained from www.rushfiles.com.

The reseller accepts that RushFiles A/S can supply all types of system messages via email and the reseller is required to secure that the supplied name, email address, mailing address, and other contact information and credentials are always correct and up to date. Marketing messages will only be sent upon the reseller’s/end user’s newsletter subscription, to the extent this is required.

To the extent RushFiles A/S processes personal data on behalf of resellers as part of the RushFiles service,
e.g. for SaaS solutions where RushFiles host the solution and user data, the processing of such data shall be regulated by and in accordance with the Data Processor Agreement entered into separately.

Users

A user is identified by an email address and it is the Reseller’s responsibility to control and administrate end users’ access to the resellers and end users’ data on the Software.

All users, internal as well as external, who are given access to utilize RushFiles must have accepted these Terms.
[This should be at installation of the App/software/first login to the system or other form of acceptance which RushFiles A/S can log/document]

User License

The user license is conditioned upon the continuant pre-payment for RushFiles. A valid user license for RushFiles of reseller and its users must continuously be verified on RushFiles A/S’ servers.

When RushFiles A/S has registered pre-payment from the reseller for the use of RushFiles, the reseller shall acquire a non-exclusive and time-limited user license granting the reseller the right to use RushFiles (the Software and Services including the ordered resources, add-ons etc.).

On the date the user license expires, the reseller’s access to use RushFiles shall be discontinued by RushFiles A/S and the reseller shall be obliged to delete the Software, unless otherwise agreed, e.g. in case of the Software’s End-of-Life, c.f. below.

RushFiles A/S shall retain any and all rights, including but not limited to right of title and full copyright to RushFiles. Neither the reseller, the users nor any third party shall be entitled to perform any error correction or recovery, reverse analyse, reverse engineer, make changes, further develop, do maintenance, transfer or make any copies of RushFiles other than allowed by RushFiles A/S, unless otherwise permitted according to mandatory Danish law.

Improvement and updating of RushFiles

RushFiles A/S shall regularly try to improve RushFiles and RushFiles A/S shall, to reasonable extent, attempt to remedy and patch known errors, bugs and defects that may occur, by updating RushFiles on a regular basis, which updates the reseller will be offered to install, whilst other updates will be mandatory and automatically updated. For SaaS solutions all updates are mandatory.

Performance may be reduced, disturbed and/or interrupted temporarily in connection with updating of RushFiles, but RushFiles A/S will endeavour to limit any disturbances and lack in performance for the reseller and end users.

Backup

SaaS solution: For resellers on a SaaS solution, where RushFiles A/S manages the platform and user data is hosted by RushFiles A/S, RushFiles A/S offers as an add-on service to regularly take backup of end users data and store the data in one or more secure environments according to good IT standards.

SaaP solution: For resellers on a SaaP solution, where the Software is not installed and data not hosted on a RushFiles A/S managed and controlled platform (primarily reseller-self hosted or third party hosted solutions) RushFiles A/S does not take any form of backups of reseller’s nor end user’s data in the environment. Thus, it is the sole responsibility of the reseller and/or end users, to ensure any form of data backup and recovery procedures for their data.

For both SaaS and SaaP solutions: If for any reason an end user deletes data in RushFiles, it is solely up to the reseller to restore the deleted data via the RushFiles-control panel. Data deleted from the Software can be retrieved solely according to the settings defined in the reseller’s administration interface and RushFiles A/S has no further possibility to recover deleted data, as this is encrypted.

End of life

RushFiles A/S is at any time entitled to give notice to reseller of cancellation of RushFiles in connection with End-of-Life of the Software and any hereto connected Services. Such notice can be given at any time by serving a notice of no less than 6 months.

For SaaS solutions, RushFiles shall cease upon the expiry of the notice period. It is the responsibility of reseller and/or end users to secure system and data backup and RushFiles A/S shall not be obligated to keep any data backup after the expire of the notice period.

For SaaP solutions, RushFiles shall cease to be updated and supported upon the expiry of the notice period. Reseller may choose to continue to use the Software conditioned upon the continuant pre-payment of the user license fee, hereby upholding a valid user license. Any possible fees for Services connected to the Software which are no longer rendered to the reseller shall not be applied after the expiry of the above notice period.

For SaaS and SaaP solutions: Reseller and users are obligated to delete the RushFiles according to the clause below regarding "Termination".

Pre-paid fees for the period after the End of Life notice period shall be refunded to the reseller, except as stated under SaaP solutions where the use of the Software continues after the notice period according to a valid user license, in which case no refund will be made.

Prices, payment and invoicing

Any fees for the use of RushFiles shall be payable in advance for each subscription period ("Subscription Period").

Unless otherwise agreed, the Subscription Period shall cover a user license period of 12 months.

RushFiles shall be activated for use once pre-payment has been registered with RushFiles A/S. Pre-paid subscriptions will not be refunded unless otherwise stated in the Terms.

Additional utilisation, including but not limited to installation, copying, number of users, amount of storage etc. can be increased with additional purchases/orders/use/capacity etc. during the Subscription Period, which additional use shall also be pre-paid and invoiced/charged separately, for the remaining Subscription Period.

If a subscription isn’t cancelled or downgraded before the end of the Subscription Period, the subscription for RushFiles will automatically be extended for an additional Subscription Period and fees connected hereto raised.

All payments will be raised and debited from the credit card number supplied by the reseller. The credit card shall be valid at any time or an invoice will be issued to the reseller to be paid by bank transfer.

If payment is not settled when due, RushFiles A/S reserves the right without notice and without liability to limit and/or suspend the resellers and end users’ access to RushFiles, until due payment has been made in full. If payment has not been settled in full within one week of written notice, RushFiles reserves the right to cancel the user license and thus discontinue any and all access to RushFiles and delete any and all stored data within RushFiles without further notice and without any liability.

Errors, performance problems and liability

RushFiles shall be delivered "as-is" and "as-available". RushFiles A/S disclaims any and all liability in regard to RushFiles and hereto connected services and the use hereof and RushFiles A/S shall not be liable to pay reseller or any third party for any direct or indirect damages, losses, costs, inconveniences or other consequential losses or damages, fines or any other form of compensation.

RushFiles A/S have endeavoured to thoroughly test RushFiles in accordance with good practice which also applies to updates. However, errors can occur, and RushFiles A/S disclaims any and all liability of any kind as a result of errors, bugs or lack in the functionality or availability of RushFiles.

RushFiles A/S would appreciate the reporting of any errors and performance problems, to enable RushFiles A/S to further develop and error correct RushFiles. All reporting will be handled and processed; however, RushFiles A/S shall not be obligated to correct any identified issues and disclaims any liability hereto.

It cannot be guaranteed or avoided that an unfortunate coincidence of circumstances can occur, which will mean that RushFiles will be inaccessible or limited in use of functionalities for users. RushFiles A/S shall endeavour to get RushFiles fully operational again. However, RushFiles A/S disclaims any and all liability in connection hereto.

RushFiles A/S shall in no event be liable for:

  • problems that may arise in connection with the installation on reseller’s or user’s hardware including in the reseller’s operating environment.
  • RushFiles having a certain value for the reseller, the reseller not obtaining a wished result or for RushFiles in any other way not having the prescribed desirability or usability or meets the reseller’s or user’s needs.
  • circumstances which can be attributed to the resellers lacking performance of its obligations.
  • faults occurred as a result of the reseller’s use of RushFiles in connection with non-RushFiles A/S- equipment etc. which directly or indirectly affects the functionality of RushFiles.
  • fault occurred as a result of changes or alterations of RushFiles, which is not executed by or in accordance with RushFiles A/S’ instructions.
  • faults occurred as a result of the reseller’s lack of training/education or use of RushFiles in a manner other than prescribed, including according to delivered documentation or by neglect on the account of the reseller, its personal, users or third party or by other circumstances outside the control of RushFiles A/S.
  • normal maintenance and adjustments.
  • limitations in systems functionality or development caused by the reseller’s importing or loading of programs/applications/software etc. which can affect RushFiles.

If RushFiles A/S disregarding the above is met with a claim for damages etc. such claims shall in any event be limited to cover direct losses only and shall in no event exceed a total amount equivalent to what the reseller has paid to RushFiles A/S for the latest month of the current Subscription Period. For the avoidance of doubt, loss of data is always deemed to be an indirect loss.

The limitation of liability shall also apply to product liability to the extent statutory Danish law prohibits this. Any non-statutory product liability is thus expressly disclaimed.

Force Majeure

A party shall not be liable for failure to perform its obligations, nor be liable for any claim for compensation or damage etc., nor be deemed to be in breach of its obligations, if such failure arises from an occurrence or circumstances beyond the reasonable control of that party (excluding an obligation to make payment).

Force Majeure shall include but not be limited to events of natural disasters, industrial actions, hacking, malware, ransom ware, virus and DDOS or DOT attacks, disturbance of general communication or power lines, illness of key employees, fire, flooding, riots, vandalism, strikes, lock out, wars, embargo or governmental actions and the like.

If a party affected by such an occurrence causes a delay of three months or more, and if such delay may reasonably be anticipated to continue, then the parties shall, in consultation with each other, discuss whether continuation of RushFiles is viable, or whether the agreement regarding RushFiles should be terminated.

Transfer

The user license to RushFiles can be transferred to third party but shall require (i) prior written consent from RushFiles A/S and (ii) that the party acquiring the user license accepts to be bound by the agreement with RushFiles A/S and these Terms.

RushFiles A/S will only refuse to give consent of transfer if a commercial argument for such denial exists
e.g. unethical or illegal activities with the acquiring third party or prior breach of RushFiles A/S terms and conditions.

Liability for data, data content and data processing

RushFiles is available for the handling of files/data for the reseller and its users.

RushFiles A/S does not handle files/data and disclaims any and all liability for any content, validity or legality of data/files stored and transferred through RushFiles and whether this takes place in accordance with current legislation, including copyright legislation.

Only the reseller and reseller’s users shall be responsible for compliance with applicable rules on Processing of Personal Data, including the General Data Protection Regulation (GDPR). RushFiles A/S specifically

disclaims any liability for non-compliance with GDPR, except for fines issued by the relevant authorities against RushFiles A/S. RushFiles shall thus in no event be obligated to cover any cost, damages or fines issued against or taken on by the reseller in relation to processing of personal data.

Third party rights

If a third party raises objections against the reseller for the use of RushFiles as a result of third-party rights hereto, the reseller shall immediately notify RushFiles A/S hereof.

RushFiles A/S shall consequently ensure that the reseller and the users can legally use RushFiles or change the content of RushFiles so that it does not infringe third party rights, but RushFiles A/S may also choose to terminate the agreement and close access to RushFiles for the reseller and the users by declaring an “End of Life due to Third Party Rights” of RushFiles, by giving a reasonable short notice allowing reseller and users to move their data to a secure location outside RushFiles. The reseller and the users shall then be obliged to delete RushFiles including any installed RushFiles software.

In case RushFiles declares an End of Life due to Third Party Rights, RushFiles A/S shall be obligated to reimburse the reseller any pre-paid fees for the period after the notice of End of Life due to Third Party Rights has taken effect.

None of the parties can subsequently submit further claims against each other.

Termination

RushFiles can at any time be terminated or the number of users/storage reduced by both parties with effect from the end of a Subscription Period.

RushFiles A/S can furthermore terminate RushFiles without further notice in case of the reseller’s or reseller’s users’ misuse or abuse of RushFiles and reseller has not remedied such misuse or abuse within 10 days from receiving written notice hereto. Misuse and abuse cover, but is not limited to, reseller or a user in connection with RushFiles:

  • probe, scan, or test the vulnerability of any system or network,
  • breach or otherwise circumvent any security or authentication measures,
  • access, tamper with, or use areas or parts of RushFiles, which lies outside what reseller has a valid license to,
  • interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of RushFiles,
  • send unsolicited communications, promotions or advertisements, or spam,
  • send altered, deceptive or false source-identifying information, including "spoofing" or "phishing",
  • promote or advertise products or services without appropriate authorization,
  • circumvent storage space limits,
  • sell RushFiles unless specifically authorized to do so,
  • publish or share materials that are unlawfully pornographic or indecent, or that contain extreme acts of violence or terrorist activity, including terror propaganda,
  • advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual orientation, disability, or impairment,
  • harass or abuse RushFiles A/S personnel or representatives or agents performing services on behalf of RushFiles A/S,
  • violate applicable law in any way, including storing, publishing or sharing material that is fraudulent, defamatory, or misleading, or
  • violate the privacy or infringe the rights of others.

Termination can only take effect for the future.

When RushFiles terminates/the user license expires, it will no longer be possible to use RushFiles and the reseller and users shall be obliged to delete RushFiles from any applicable platforms. Likewise, RushFiles A/S shall be obligated to delete any of the reseller’s or users’ data on RushFiles platforms, to the extent RushFiles A/S is in possession of such. RushFiles A/S reserves the right (but is not obligated) to postpone permanent deletion of data for a shorter period of time making it possible for reseller and users to retrieve their data.

If RushFiles A/S is required by an authority to deactivate, limit or delete a reseller’s or a user’s access to RushFiles or data within RushFiles, RushFiles A/S shall be entitled to do this without notice and without any liability to the reseller or the users.

References

RushFiles A/S is entitled to use the reseller as reference in marketing material, unless otherwise agreed in writing.

Venue and Disputes

The relationship between the parties, including disputes regarding its existence, interpretation or validity of any agreement between the parties including these Terms shall be governed and construed by Danish law irrespective of any conflict-of-laws rules which might refer the dispute to the laws of another jurisdiction.

Disputes between the parties that cannot be settled amicably shall be settled by the ordinary Danish courts at the current venue of RushFiles A/S.

********** RushFiles A/S, Horsens, Denmark, 07. June 2019

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