Famly Terms & Conditions
May 2018
Terms & Conditions
Between
The Customer

(hereafter “The Customer”)

And
Famly ApS

Købmagergade 19, 2tv
1150 Copenhagen K Denmark
VAT no.: 35 41 37 58
(hereafter “Famly”)

1. Introduction

The following terms and conditions (hereafter ”Famly Terms”) form the foundation for the agreement (”The Famly Agreement”) between Famly and The Customer regarding The Customer’s use of Famly’s solution (hereafter “The Solution”) which The Customer will be, upon acceptance of Famly’s offer (“Famly Offer”) sent by email to The Customer or accepted electronically, given access to.

2. Rights

Famly owns all rights, including (without limitation) all copyright, trademarks and all other intellectual property rights, in and connected with The Solution. The Customer shall not obtain any rights to The Solution, except for those specifically stated in The Famly Agreement.

Famly grants to The Customer a non-transferable, revocable and non-exclusive licence to use The Solution in respect of those schools, daycares or nurseries specified in the Famly Offer. The Solution must only be accessed and used with a username and password (hereafter “Access Information”), which Famly shall provide to The Customer. The Customer is responsible for keeping the Access Information confidential, and ensuring that it is only used in connection with access to The Solution.

The Customer may grant access to one or more third parties connected with the schools, daycares or nurseries specified in the Famly Offer as users of the system, for example staff or parents (“Users”) so that such Users can gain access to The Solution. In the same way, an approved User may give other Users access to The Solution.

The licence to use The Solution includes the right to use the features specified in the Famly Offer and the potential limitations which have been specified in the Famly Offer. The price for the licence to use The Solution depends on the functionality and package chosen by The Customer and is stated in the Famly Offer.

Famly has the right to offer further services and features in The Solution beyond the agreed standard features for both parents and The Customer. Use of these further features is optional for both parents and The Customer and Famly is entitled to charge additional sums for such services (as specified by Famly from time to time).

3. Security

Famly strives to ensure that operation of The Solution is as secure and reliable as possible in accordance with good IT practice. Famly does not however warrant that The Solution is flawless.

Famly does not specifically warrant that:

  • The Solution will be secure against hacker attacks or other unauthorized access to The Solution, even though Famly shall use reasonable endeavours to design The Solution to resist hacker attacks and other unauthorized access cf. Famly’s Security Appendix.
  • The Solution will at any given time be fully operational or accessible to The Customer; or
  • any specific functionalities of The Solution will be available at any given time.

Famly’s taken security measures are further specified in the Data Processing Agreement.

4. Operation

Uptime and Maintenance

Famly strives to deliver the most possible uptime. All scheduled maintenance will, as far as possible, be carried out with minimal disruption for The Customer and conducted outside ordinary business hours. To the extent possible, maintenance is conducted during weekends or between 10 PM and 6 AM (“The Maintenance Window”) on working days.

The Solution might be unavailable due to maintenance work etc. within the period of The Maintenance Window. For safety reasons or when correcting critical errors, Famly can be forced to close down parts of or the entirety of The Solution beyond The Maintenance Window in order to protect the system, The Solution or The Customer’s data from risks. To the extent possible, Famly will notify The Customer by email or inside The Famly Solution of unscheduled actions outside of The Maintenance Window.

Famly shall use reasonable endeavours to sustain a continuous operation, including ongoing maintenance of The Solution by correcting errors and dysfunctions, as well as developing the system with expansion of existing functionalities and the development of new functionalities. The correction of significant errors will be initiated within ordinary business hours, while other errors are targeted within a reasonable period of time in relation to the nature of the error and the impact on The Solution and The Customer’s use thereof.

Relevant surveillance is installed on the system and Famly monitors the system on a regular basis. Famly will act as quickly as possible on any incidents that could affect The Customer’s use of the system.

Backup

Backup of The Solution and of The Customer’s data will be carried out as referred to in The Data Processing Agreement.

5. Service and support

Depending on the selected package, Famly provides support to The Customer and Users regarding the use of The Solution through the Famly Hotline Service. This support solely covers guidance and specific advice regarding the usage of The Solution and does not include training in the usage of The Solution nor technical consultancy or troubleshooting of The Customer’s IT system.

The Famly Hotline Service answers concise and precise questions concerning the usage of the program and devices, carries out simple troubleshooting and provides general guidance regarding The Solution.

Reporting of bugs and operational issues can be addressed to the Famly Hotline Service.

Support is available on working days within normal business hours, Monday to Friday from 8 AM to 4 PM UK time on phone +44 20 3808 4386. In addition, the Famly Hotline Service can be reached by email on support@famly.co.uk

6. Personal data processing

As part of The Customer’s usage of The Solution, Famly operates and supports The Solution for The Customer. Hereby Famly conducts processing of personal data for which The Customer is the data controller (“Customer Data”). Consequently, Famly is acting as a data processor in respect of Customer Data. It is the responsibility of The Customer, as the data controller, to submit any necessary notifications to the relevant authorities.
The processing of Customer Data is further specified in the Data Processing Agreement between Famly and The Customer.

As part of The Customer’s usage of The Solution, Famly operates and supports The Solution for The Customer. Hereby Famly conducts processing of personal data for which The Customer is the data controller (“Customer Data”). Consequently, Famly is acting as a data processor in respect of Customer Data. It is the responsibility of The Customer, as the data controller, to submit any necessary notifications to the relevant authorities.
The processing of Customer Data is further specified in the Data Processing Agreement between Famly and The Customer.

Audit Rights

Should The Customer wish, Famly can assist The Customer with ensuring that Famly has, to a reasonable extent, implemented and maintained the agreed security precautions by providing The Customer access to relevant documents and materials (for an hourly fee of GBP 75). If The Customer requires such an audit, Famly must receive a written notice no later than 30 days in advance.

Should The Customer wish, Famly can assist The Customer with ensuring that Famly has, to a reasonable extent, implemented and maintained the agreed security precautions by providing The Customer access to relevant documents and materials (for an hourly fee of GBP 75). If The Customer requires such an audit, Famly must receive a written notice no later than 30 days in advance.

7. The Famly data policy

The data submitted into The Solution by The Customer or the Users is the property of The Customer.

8. Terms of pricing and payment

The Customer must pay an annual subscription fee, which is based on The Customer’s desired functionalities, package and the number of daycares, nurseries or schools using the The Solution, and which is set out in the Famly Offer. Payment terms are specified separately in the Famly Offer.

The Customer and The Customer’s users must pay a fee for any purchased add-ons added to The Solution.

Famly may change the annual or monthly subscription pricing with effect from a new subscription period, provided a written notification (including e-mails) is sent to The Customer no later than three months prior to the start of the new subscription period. If The Customer rejects the new pricing, The Customer may terminate the agreement cf. Section 12 below.

Invoiced amounts are due within 14 days from the invoice date. For late payment, Famly is entitled to charge a 2% arrears per commenced month, starting from the due date. If the invoice is not paid by the due date, Famly is, until the overdue payment is received, entitled to prevent The Customer accessing The Solution until all arrears have been received (notwithstanding Famly’s right to terminate The Famly Agreement, cf. Section 12).

9. Errors and omissions

Provided The Customer wishes to complain about errors or omissions within The Solution, this must be done promptly, since The Customer otherwise will be deprived of the right to complain for breach of contract.

10. Responsibilities

Famly renounces any responsibility for error and omissions within The Solution, including The Solution’s effect on The Customer’s hardware or software, and in regards to compatibility with new versions, updates etc.

Notwithstanding any other provision of this Section 9, nothing in the Famly Agreement shall exclude either party’s liability for death, personal injury or fraud.

Famly shall not be held liable for any indirect loss, including but not restricted to, loss from consequential damage, operating loss and profit loss, demands raised by third parties, data loss or expenses regarding reestablishment of data, which may occur in respect of the Famly Agreement.

Loss of data is considered as indirect loss, except if the data can not be recovered from the latest backup or Famly has not backed up in accordance with Section 4. In those cases, the loss is considered a direct loss.

Famly shall not be liable for The Customer’s loss of data where such data has been submitted by The Customer after the time of the latest backup.

Should Famly, despite the abovementioned disclaimer, be held liable for damages, Famly’s liability is always restricted to the sum that The Customer has paid in connection with the usage of The Solution within a year prior to the compensation claim.

11. Force majeure

Famly cannot be held liable for breach of The Famly Agreement caused by circumstances beyond Famly’s control, including (for example), strikes, lockouts, public regulations, war, terrorism, water damage, trade restrictions, virus or hacker attacks, illness or deaths of key employees, IT failures, telecommunications malfunctions, fire, electricity breach, power failure, flooding, lightning strike or abnormal weather conditions.

12. Termination and breach of contract

The subscription period for this contract is 12 months.

Until The Famly Agreement is terminated or discontinued by one of the parties, the subscription period will be renewed automatically, and The Famly Agreement will continue. The Customer may terminate The Famly Agreement by giving at least a 1-month notice before the end of a subscription period. Such termination will take effect at the end of the relevant subscription period.

Famly can terminate the Famly Agreement by written notification with a three-month’s notice, unless other arrangements have been made between the parties. Such termination will take effect at the end of the relevant subscription period.

Famly may terminate The Famly Agreement: (i) in respect of a breach of the payment obligations set out in Section 8, by providing The Customer with 14 days’ written notice and the opportunity to remedy the breach in such period; or (ii) in respect of any other material breach of any term of The Famly Agreement, by providing The Customer with 30 days’ written notice and (where such breach is capable of remedy) the opportunity to remedy the breach in such period. In each case termination will take effect on the expiry of the relevant notice period.

13. Assignment

Famly may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under The Famly Agreement and may subcontract or delegate in any manner any or all of its obligations under The Famly Agreement to any third party or agent.

The Customer shall not, without the prior written consent of Famly, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under The Famly Agreement.

14. Third party rights

No one other than a party to The Famly Agreement shall have any right to enforce any of its terms.

15. Severability

If any provision or part-provision of The Famly Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part- provision under this Section 15 shall not affect the validity and enforceability of the rest of The Famly Agreement.

16. Entire agreement

The Famly Agreement together with the Famly Data Processing Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in The Famly Agreement.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in The Famly Agreement.

17. Waiver

A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (a) waive that or any other right or remedy; or (b) prevent or restrict the further exercise of that or any other right or remedy.

18. Applicable law and legal venue

The Famly Agreement is governed by Danish law. Any dispute between the parties (whether contractual or non-contractual) arising under or in connection with The Famly Agreement that cannot be solved amicably shall be submitted to the exclusive jurisdiction of the Danish courts.