General Terms and Conditions

The general terms and conditions of Tjek as of 2017 October 3 (the “GT&C”).

1. DEFINITIONS

“Tjek:” Tjek A/S, a company incorporated in Denmark.

“Facilitator:” Any third party that Tjek has entered into an agreement with regarding distribution or facilitation of Services and other rights and obligations.

“Service(s):” CMS, APIs, SDKs, Marketing, Integration, and other services provided by Tjek to Customer.

“Customer:” A third party that enters into Agreements.

“Agreements:” Facilitator Agreement and/or Tjek Agreement.

“Facilitator Agreement:” Any signed agreement between Customer and Facilitator about the Services.

“Tjek Agreement:” Any signed agreement between Customer and Tjek about the Services.

“Party:” Tjek, Facilitator, or Customer.

“Parties:” Tjek and/or Facilitator and Customer.

“App:” Tjek’s apps called “eTilbudsavis”, “eReklamblad” “Mattilbud” and “ShopGun”, available for iOS and Android.

“Website:” The website(s) of Tjek, available at shopgun.com (and at several other country code top level domains such as shopgun.no, shopgun.se and shopgun.de).

“CMS:” The content management system on the Website.

“Content:” Data that Customer adds via the Services, e.g. Catalogs and Deals.

“Catalogs:” Commercial catalogs that are usually also distributed to household mailboxes and are delivered to Tjek digitally in PDF.

“Deals:” Deals created via the Services or created by Tjek from Catalogs.

“Media:” Media channels of Tjek, e.g. Tjek’s Website and App.

“Marketing:” Presentation of Content to people that are using the Media.

“Integration:” Integration of the Content in Customer's own media (e.g. apps and websites) by the use of Services.

“Statistics:” Data collected from the Services.

“Segmentation:” Restrictions of Content, e.g. being present in only specific geographical areas.

The GT&C are an integrated part of Agreements. However, in case of discrepancies between the GT&C and the Agreement, the GT&C shall prevail.

2. PERFORMANCE

2.1. Tjek shall deliver its Service in accordance with the GT&C. Customer accepts that Tjek shall be entitled to facilitate any delivery to Customer, according to Agreements, as per agreement between Tjek and Facilitator.

3. CUSTOMER

3.1. Customer shall add Content for Marketing.

Catalogs must be added no later than 72 hours prior to when they should be published. Failure to comply with this term means that Tjek cannot guarantee that the Catalogs will be timely published in the Media.

3.2. Customer shall not add Content which is illegal, harassing, threatening, harmful, damaging, defamatory, insulting, offensive, violent, obscene, vulgar, invasive in relation to the privacy, spiteful, racist, pornographic or ethnically offensive, promoting Tjek competitor(s), or offensive in any other way. Such Content will be deleted immediately when observed by Tjek whom may consider it a gross breach of the Agreements. Furthermore, Tjek will remove Customer’s access to the CMS.

3.3. Through CMS, Customer shall add and maintain its account, e.g. in the form of logo, branding color, website, addresses of the stores, opening hours, etc.

3.4. Customer may use Integration.

4. DATA RIGHTS AND OBLIGATIONS

4.1. Catalogs remain property of Customer and may only be used by Tjek in accordance with and to perform rights and obligations under the Agreements. Tjek is, however, at any time entitled to keep copies of Content for other purposes, without limitations, such as e.g. supply and demand analysis.

4.2. Customer shall ensure that the Content is in accordance with applicable Danish legislation and legislation in the country of Customer. This applies, inter alia, to rules concerning personal data, marketing, consumer protection, and intellectual property rights.

4.3. Customer shall indemnify Tjek against any claims from third parties, including, inter alia, claims for damages, compensation, or legal costs to the opponent and Tjek's representation, if liability may be attributed to Customer's affairs, and the behavior giving rise to liability is not due to Tjek's failure to fulfil its obligations under the Agreements.

4.4. Any intellectual property or data rights pertaining to the Services, Statistics, and to any other delivery by Tjek are owned by, or licensed to, Tjek. The Agreements shall not in any way transfer nor license any intellectual property or data rights to Customer nor Facilitator.

5. DUTY OF SECRECY

5.1. The Parties shall undertake to keep secret all information (i) exchanged between the Parties and (ii) which is not already accessible to the public. In this connection, manuals, guidelines, technical information, know-how, methods and related information developed by and/or owned by Tjek, and other confidential information, which Customer has received during its co-operation with Tjek and/or Facilitator, shall be described as the business secrets of Tjek and/or Facilitator which may not be disclosed or used by Customer or its staff. This duty shall also apply after termination of the Agreements.

5.2. The Parties shall, however, not keep secret the fact that the Agreements exists. However, specific agreement terms, including, without limitation, term, pricing, and other Customer-specific terms, shall be governed by Clause 5.1.

6. INVOICING AND TERMS OF PAYMENT

6.1. For Marketing, Customer will be invoiced when an invoicing period, according to the Agreements, expires. The Agreements define what results Customer pays for and how much Customer pays for each result. The invoice will be based on actual results achieved; actual results achieved are measured from the Statistics within the invoicing period to show the actual Marketing achieved.

6.2. For Integration, Customer will be invoiced when an invoicing period, according to the Agreements, expires. The Agreements define what Integration Customer pays for and how much Customer pays for each Integration. The invoice will be based on actual usage; actual usage achieved is measured from the Statistics within the invoicing period.

6.3. Only for Tjek Agreements, invoices fall due for payment as agreed in Tjek Agreements. In the event of late payment, interest is charged (discount rate of Danish Central Bank with an addition of 6 % p.a.) with effect from the time for payment stipulated in the invoice. In the event of late payment, a dunning letter is forwarded, and if payment is still not effected, debt will be collected by a third party.

7. SERVICE LEVEL AND UPTIME

7.1. Tjek shall provide Marketing with reasonable care and proficiency. Tjek shall not give other promises or guarantees with regards to Marketing, and Tjek does not guarantee that:

(i) Marketing will be uninterrupted or free from errors. The Customer accepts that Tjek may at any time remove Marketing as a part of the Agreements for non-specified periods of time and Tjek may at any time cancel Marketing for technical or operational reasons, and Tjek will notify Customer as much as possible;

(ii) Marketing will not be subject to loss, distortion, attacks, virus, interruption, cracking, or any other attacks on the security which would constitute a force majeure situation.

Tjek hereby excludes liability in this respect.

7.2. Only in relation to Integration, Tjek warrants an uptime of 99.5 %, calculated as:

(“Actual Uptime” / “Active Period”) “ 100

Active Period is calculated in full hours when Integration was available, weighing the hours 00:00-08:00 with only 1/10, taking into consideration the expected limited traffic during these hours.

Actual Uptime is calculated in full hours when Integration was available.

7.3. Planned service work, maintenance, and updating of Integration in the hours 01:00-06:00 are included in the Actual Uptime but are performed in as short intervals as possible. Notice concerning planned shutdowns will, as far as possible, be given 48 hours before.

7.4. Tjek shall notify Customer as soon as possible about any interruptions of operation, including the time, duration, and reason.

7.5. Tjek shall not be responsible for interruptions of operation caused by circumstances outside control of Tjek, including power breakdown, DNS breakdown, errors with top level domain administrators (or similar), cabling outside the physical settings of Tjek, hardware errors, errors in deliveries from third parties (e.g. hosting providers, such as Amazon), and errors due to Content.

7.6. Tjek shall not be responsible for interruptions of operation caused by force majeure (strikes, weather, war, etc.).

7.7. Tjek shall not be responsible for interruptions of operation due to inaccessibility of digital market places where the Media is offered, e.g. Apple App Store, Google Play, and Windows Marketplace.

7.8. If the uptime is not observed during a calendar month, and this is due to circumstances for which Tjek is responsible for and which are not covered by Clauses 7.3-7.7, Tjek shall within 30 days after demand from Customer refund or credit Customer an amount equivalent to the costs per day when the guaranteed uptime was not observed. However, this amount may never exceed one month's payment (see clause 6).

8. OTHER TERMS

8.1. Tjek shall always ensure that its development, production, manufacturing, quality control, analysis, testing, marketing, sales, etc. take place at a high level in terms of professionalism, quality, and ethics.

8.2. Tjek is liable for the conformity of Services in respect to statutory or other regulative requirements applicable in Customer’s jurisdiction, hereunder any legislation regarding data protection and privacy laws.

8.3. Customer is not entitled to assign rights or obligations under the Agreements, unless Tjek has given its prior written consent. Tjek is entitled to assign Tjek Agreements to third parties who are affiliated to Tjek.

8.4. For Facilitator Agreements, Customer accepts that in the event of termination of the agreement between Tjek and Facilitator, the rights and obligations of Facilitator under its agreement with Customer are immediately assigned to Tjek in order for Customer to keep receiving the Services. However, Tjek may refuse to undertake any transferred rights or obligations. Upon notice from Tjek, correspondence, payments, and any other deliveries from Customer to Facilitator, shall be directed to Tjek as per instructions from Tjek.

8.5. Customer accepts use of sub-contractors of Tjek. Customer also accepts that Tjek, to the extend necessary in order to serve its obligations under the Agreements, is entitled to pass on information and data to sub-contractors regarding Customer received from Customer directly or via Services.

8.6. Tjek reserves its right to change the terms and conditions of Tjek Agreements and GT&C on a continuous basis, including to change or include payments for, inter alia, existing and new services (“Changes”). Tjek shall notify Customer by email about any Changes. Any Changes will come into force and be applicable to the Agreements, and thereby the Parties' relationship, at one (1) month’s notice after the date when Customer has been notified about the Changes by Tjek. However, Changes that solely improve the legal position of Customer may come into force immediately.

8.7. When Customer has been notified about Changes by Tjek and does not want to continue the Agreements because of the Changes, Customer is, only within the one-month notice that Tjek gave, entitled to terminate the Agreements, with effect from the day the Changes come into force, by giving notice by email to Tjek or Facilitator.

9. TERMINATION – BREACH

9.1. In the event of material breach of the Agreements, the Party not in breach is entitled to terminate the Agreements with immediate effect in accordance with the general rules of Danish law. Furthermore, the Party not in breach is entitled to claim other remedies for breach in connection to a Party's breach, whether the breach is considered material or not, including that the Party not in breach shall be entitled to claim compensation according to the general rules of Danish law with the modifications set forth in the GT&C. If an Agreement is terminated, Tjek or Facilitator is entitled to full financial cover for the part of the Services which has already been performed according to the Agreement, and which has not yet been paid.

9.2. A claim for breach shall be made within one (1) month after the Party not in breach was or ought to have been aware of the breach. Failure to make a claim for breach in relation to a specific matter does not result in the Party being deprived from claiming breach in relation to an identical or similar matter at a later point in time.

9.3. The Parties shall not be liable for damages or losses that originate from unusual circumstances or that prevent, complicate or make the performance of the Agreements more expensive, if these damages or losses occur after entering into the Agreements and lie outside the Parties' control, including: industrial disputes (strikes and lockouts), fire, war, riots, internal unrest, weather and natural disasters, exchange restrictions, public seizure, bans on import and export, interruption of general communications, including energy supply, substantial increases in prices and/or duties, currency fluctuations, production and delivery difficulties due to circumstances for which a Party is not to blame and force majeure and/or hardship with relevant co-operation partners, sub-suppliers, etc.

9.4. Material breach under the Agreements exists, inter alia, when:

  1. Customer breaches its obligations under Clauses 3, 4, and 6.
  2. Tjek breaches its obligations under Clause 4.
  3. Tjek sets aside its obligations on several occasions under Clause 7.

9.5. Tjek and Facilitator shall in no event be liable for indirect losses or damages, including, but not limited to, operating losses, loss of profits, loss of time, punitive damages, and consequential costs. If damage caused by the Services, or danger that such damage will occur, comes to the attention of Customer, Customer shall without undue delay notify Tjek thereof in writing. The notice does not relieve Customer of his obligation to minimize such damage.

9.6. In any case, Customer's claim for damages or losses is limited to an amount equivalent to one month's fee under Clause 6.

10. GOVERNING LAW

10.1. Any dispute which may arise out of or in relation to the GT&C and/or Tjek Agreements is to be settled in accordance with Danish law and by the court in Copenhagen as the venue in the first instance.


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