The Customer orders software applications and related services, including any modifications, new features or upgrades (the “Software”) from Ducky through a Contract, either directly by phone, email, webpages, or through a Partner with their procedures for providing Client access to the Software.
These terms of service (the “Terms of Service” or “TOS”) are standard terms that govern the use of the Software. By: (i) signing a contract, (ii) signing the TOS, or (iii) clicking or marking “I accept”, the Customer understands and accepts that the Customer enters into a legally binding Licence Agreement with Ducky which, unless otherwise set out in the Contract, becomes effective once the Contract is signed. For Trial Customers, special procedures in 2.3 apply.
The following information may appear in the Contract and invoice, depending on Software: 1. Software the Customer has contracted. 2. Fees for the Software contracted. 3. Termination terms for a subscription or the customer relationship. 4. Any additional terms and services as agreed between the Parties.
Unless agreed otherwise in writing, the TOS and Contract constitute the entire agreement for the Software (together the “Licence Agreement”). The Licence Agreement prevails in the event of a conflict between the Licence Agreement and any other agreement entered into between the parties.
Ducky may change the Licence Agreement by notifying the Customer in accordance with 1.3.1 and 1.3.2, as applicable. The changes become effective as of the date set out in the relevant notice. The Customer’s continued use of the Software after the changes have become effective constitutes the Customer's acceptance of the changes. If the Customer objects to any changes to the Licence Agreement, the Customer may terminate the Licence Agreement in accordance with section 5.6.1. The latest version of the TOS is at all times available on the Ducky support pages.
Fees
The Customer agrees to timely pay Ducky the Fees in accordance with the Contract and the, at the relevant time up-to-date, price list made available online or through customer sales representatives.
Unless otherwise agreed in writing (e.g., in sections 1.4.4 and 1.4.5), all Fees are due on the date set out in the relevant invoice and non-refundable, with no refund for unused Software or remaining days in a Subscription Period. That is unless the Software availability has been significantly reduced for reasons solely attributable to Ducky. Ducky may at its discretion and as the sole remedy, offer a reasonable refund for Fees accrued during such period of reduced availability.
Fees are exclusive of all taxes, levies and duties. Unless agreed otherwise, Ducky will add the applicable value added tax (VAT) to the invoice.
Ducky reserves the right to change the Fees and/or the Fee model, on three months’ notice in accordance with section 1.3.1 up to two times per year for any individual Software, and on one month notice if a subcontractor increases its prices towards Ducky. Further, Ducky has an annual right to increase prices in accordance with general price and cost level developments without notice and with effect from the 1st of January each year.
In the event of the Customer’s non-payment or late payment of the Fees, Ducky reserves the right to suspend the Customer’s access to the Software, and charge penalty interest as permitted by law, with unpaid invoices sent to collection. If not resolved within a reasonable time, Ducky reserves the right to terminate the Customer’s right of use to the Software c.f. 5.6.
Notifications
Information about new features, price changes or planned maintenance, will be delivered inside the Software, on the Software’s web pages, or by email.
Notifications regarding Contracts, contract changes (other than changes mentioned in section 1.3.1), information of particular importance, security or privacy, will be sent to the Customer’s contact email.
The Customer is responsible for providing at all times up to date contact information, including a primary contact email.
All notices are deemed notified and effective immediately when sent or posted by Ducky.
The Software
The Customer purchases a right to use, and is granted access to as set forth in this TOS, the Software as it is made available online by Ducky. The Customer must not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from the Software or parts thereof.
Ducky provides operational support free of charge for login- or account issues or functional issues in the Software. Additional support, such as user training, consulting or implementation, unless otherwise stated in the Contract, may be purchased separately from Ducky or a Partner.
The Software is provided “as is” as standard software, without any expressed or implied representations or warranties of any kind. The Customer may access and use online Software as it is provided at any given time, such Software is not contingent on a particular version nor publications or materials.
Ducky reserves the right to make improvements, add, change or remove functionality, or correct issues or omissions in the Software at its sole discretion without any obligation or liability accruing therefrom. In the event a modification disables functionality that forms a material part of the Software permanently or for more than two months, the Customer may terminate the subscription only for the affected Software, and request a pro-rated refund for any remaining Fees paid in advance for the affected Software.
Ducky has the right to discontinue any Software or its availability in a particular market on twelve months prior notice, unless the discontinued service is caused by force majeure circumstances outlined in section 5.4, where shorter notice periods may apply. The Customer is entitled to request a prorated refund for any Fees paid in advance for the period following the discontinuation.The Customer must cease using the Software after notified discontinuation and is not entitled to make any further claims against Ducky.
Right of use
Customer
Subject to the Customer’s compliance with the Licence Agreement, Ducky grants the Customer, and its Affiliates (if Affiliates are included in the Contract), a Limited Licence to access and use the Software, solely for Internal Business Operations.
The Customer is responsible for the legality of User actions and administration and for the Customer Data. The Customer must not, and undertakes to ensure that Users, and any other third parties the Customer is responsible for, do not transfer harmful code, unlawful data or viruses to or with the Software, or use the Software in or for any unlawful manner or purpose or in breach of the Licence Agreement.
User accounts are for single named individuals and may only be assigned to third parties performing normal usage of the Software on behalf of the Customer, such as consultants.
The Customer will not share usernames and passwords to user accounts to any third party without Ducky’s written consent.
For avoidance of doubt, the Customer, its Affiliates, or any other third parties the Customer is responsible for, may not assign or transfer any rights or obligations under the Licence Agreement, including the Limited Licence to the Software, to any entity in whole or in part, including in connection with mergers, demergers or bankruptcy or to the Customer’s stakeholders, without prior written authorisation from Ducky.
Software Accounts may be closed, revoked, terminated or limited upon suspicion of over-use, misconduct, lack of security, a breach of terms, data processing laws or intellectual property laws, or unlawful Use. In the event of such action Ducky will be in contact with the Customer.
Partners and Clients
To buy a Partner right of Use for the Software, the Partner must be permitted with written approval from Ducky.
Subject to the Partner’s compliance with the Licence Agreement and fulfilment of section 2.2.1, Ducky grants the Partner a Limited Licence to access and Use the Software solely to provide the Partner Services to its Clients.
The Software may only be used for the Internal Business Operations of the Partner’s Clients.
For avoidance of any doubt, the Partner or any other third parties the Partner is responsible for, may not assign or transfer the Limited Licence granted in section 2.2.2 to any entity, in whole or in part, including in connection with mergers, demergers, bankruptcy or to the Partner’s stakeholders without prior written authorisation from Ducky.
Contracts for Partner Services are entered into between the Partner and its Clients, and Ducky is not part of, nor liable for, any such contracts or breaches thereof.
The Partner is responsible for its use of the Software, including by its Clients, and the content and legality of Partner and Client Data. The Partner must not, and undertakes to ensure that Clients, and any other third party the Partner is responsible for, do not transfer harmful code, unlawful data or viruses to or with the Software, or use the Software in or for any unlawful manners or purposes or in breach of the Licence Agreement.
User administration, and acquiring necessary rights for users, is the joint responsibility of the Partner and Ducky. User accounts are for single named individuals. The Partner may invite Clients into the Software. When Clients terminate their customer relationship with the Partner, the Partner is responsible for deleting and transferring the Client data they hold as well as informing Ducky to remove data held in Ducky’s systems according to applicable legislation, including the GDPR.
Ducky ensures the Partner that the Client can exercise its right to its Client data in accordance with applicable legislation, and, for a nominal fee, obtain such data in the richest possible technical format supported by Ducky.
The Partner will indemnify and defend Ducky, including Ducky’s Affiliates, directors, officers, personnel, agents, and representatives, from and against all claims, costs, and expenses arising out of, or resulting from, any claims and requests by a Client, unless it’s directly caused by Ducky’s gross negligence or willful misconduct.
Trial Customer
The Customer is granted a Limited Licence to Use the Software registered for a trial account for a limited time, solely for the purpose of evaluating the Software’s suitability to the Customer’s Internal Business Operations and always in accordance with the TOS.
Unless otherwise agreed in writing, the trial period commences when Ducky issues the Contract and continues for the period agreed in writing in connection with the trial registration. If the Parties have not agreed on a trial period in connection with the trial registration, Ducky is entitled to terminate the trial period and revoke the Limited Licence three weeks after the Contract was issued.
Without prejudice to section 3, Customer Data processed during the trial will be deleted after the trial period, unless it is stated in the registration process that the Customer Data can be transferred to an ordinary paid and purchased customer account.
Use of data
When using the Software, the Customer, Users, Partners and Clients using the Software, if applicable, will add Customer Data to the Software and generate Usage Data, collectively referred to as Data. Data may contain both Personal Data and non-Personal Data. For more information regarding how Ducky Processes Personal Data, see section 4.
Data consists of: a) Technical information and traffic data (Usage Data), such as the type of operating system, browser type, device, browser language and IP address; b) Customer- or user- generated data (Usage Data), such as page views, clicks, inactivity, session durations, number of actions taken, password resets, context and content of support tickets, chat boxes, security logs and similar; and c) Production data (Customer Data), such as images, files or any data included in the Software by the Customer as part of using the Software.
The Customer hereby grants Ducky and its Affiliates a non-exclusive and transferable right to access and use the Data for the following purposes: a) Software and user experience improvement, typically by aggregating and analysing usage patterns and indicated needs brought by the Users, Customers Partners and Clients, enabling further improvement and development of the Software. b) Security and related purposes, for example by analysing session and login data, incident records and similar in order to prevent, investigate and document security issues and incidents and improve the security of the Software. c) Compliance. Ducky may use Data for compliance purposes, for example by logging when a Customer accepts the TOS. f) Contractual obligations. Ducky may use the Data for the purpose of fulfilling its contractual obligations towards the Customer.
Ducky may also use relevant information from public or commercially available sources and registers, and combine such information with Data as outlined above.
To the extent the Data contains Personal Data, Ducky undertakes to process such Personal Data in accordance with the data processing terms included in section 4, if Ducky is the Processor with respect to the relevant Personal Data. To the extent Personal Data is part of such Data processing, it shall primarily be anonymized, because identifying named individual users is seldom of any relevance for these purposes. If anonymization is not possible, due to technical or practical reasons, Ducky shall take alternative compensating measures to enhance protection, taking into account the requirements brought by the data processing terms included in section 4.
Ducky may share Data with its Partners in order to deliver the Software and fulfil the purposes outlined in section 3.3, including offering service improvements and comply with the rights and obligations according to the TOS.
Ducky will only share Data with public authorities or other third parties in the following situations: a) to comply with law or regulation, or to respond to a legally binding request such as a court order or warrant; b) to deliver the Software according to this TOS; c) to investigate or prevent security threats or fraud; or d) a reorganisation, merger, sale or purchase of Ducky in part or whole, where Confidential Information may be disclosed to prospective purchasers and trusted advisors, that observe the obligations set forth herein by entering into a confidentiality agreement.
Ducky will promptly notify the Customer or Partner of requests from governmental authorities regarding disclosure of Data, unless such notification is legally prohibited or if such notification is taken care of by the governmental authorities themselves.
Ducky is entitled to compile, collect, copy, modify, publish, assign, combine with other data, and otherwise use anonymous and aggregate data generated from or based on Data both during and after the termination of the agreement between the Customer.
Data Processing Agreement
Processing of Personal data
This section 4 only applies to Ducky’s Processing of Personal Data as a Processor on behalf of the Customer.
Ducky is committed to ensure that the Software is compliant with applicable data protection laws and regulations.
Ducky can provide up to date information about the Software, such as the location of our data centres and which subcontractors Ducky uses.
The categories of Data Subjects and Personal Data, as well as the nature and duration of the Processing are outlined by this TOS, the Contract, the Customers use of the Software or additional addendums entered into writing between the Parties, if applicable.
It is the Customer, Partner and User that submits the Personal Data into the Software, and thereby decides what kind of Personal Data Ducky Processes and who the Data Subjects are. This may include, but is not limited to, Personal Data relating to the following categories of Data Subjects:
Customer’s employees
Partner’s own Clients
The Customer, Partner and User may submit Personal Data into the Software and Processing may include, but is not limited to, the following categories of Personal Data:
First and last name
Contact information (company, email, physical business address)
IP address
Professional life data
Personal life data
The nature of the Processing includes collection, structuring, storage, alteration, retrieval, use, analysing, disclosure by transmission, anonymisation, erasure, and destruction.
The purpose of the Processing is to deliver the Software, and ancillary services, if applicable, pursuant to the TOS and the Contract.
The Personal Data Ducky Processes as a Processor on behalf of the Customer will be Processed for the duration of the Licence Agreement, unless the Customer instructs Ducky in writing to cease such Processing.
Ducky will only Process the Personal Data in accordance with the Customer’s written instructions. The Customer hereby instructs Ducky to: a) Process the Personal Data on behalf of the Customer, and for the purpose of and to the extent necessary to provide the Software, in a secure and professional manner, in accordance with and to fulfil the TOS, the Contract and applicable data protection law; b) Process Personal Data as initiated by the Users in their use of the Software; c) Use the Personal Data as part of developing the Software further to bring additional value to the Customer, with the security measures and purpose limitations as outlined in section 3; d) strive to anonymize the Personal Data if using it for the purposes mentioned in section 3.3 so that the data is no longer Personal Data and the Data Subjects can no longer be identified; and e) Process Personal Data as set out in this section 4, which in its entirety represents the Customer’s instructions for Ducky’s Processing of Personal Data on behalf of the Customer.
The Customer is entitled to give Ducky subsequent instructions, in writing, for Ducky’s Processing of Personal Data on behalf of the Customer, if the instruction is reasonable and necessary for the compliance with the GDPR and Ducky is given reasonable time to implement the instruction. Instead of complying with the subsequent instruction, Ducky may, at its own discretion and without any liability, cease the relevant Processing of Personal Data to which the subsequent instruction relates, even though this may affect the Software or Ducky’s performance of any other service or obligation under the TOS, or terminate the Licence Agreement. If Ducky instead chooses to comply with the subsequent instruction, Ducky reserves the right to charge the Customer an additional fee, which shall not be disproportionate to the additional costs incurred by Ducky, for such compliance. Ducky shall notify the Customer of any additional fees before taking any action due to the Customer’s subsequent instructions. The Customer is obligated to document all subsequent instructions.
The Partner guarantees that the Partner: (i) complies with all requirements applying to it under the applicable data protection laws; (ii) has the right to transfer the relevant Personal Data to Ducky for Processing in accordance with the TOS; and (iii) the instructions to Ducky regarding Ducky’s Processing of the Personal Data on behalf of the Partner comply with all applicable laws.
With respect to Ducky’s Processing of Personal Data on behalf of the Customer, Ducky undertakes to: a) Process the Personal Data only in accordance with the Customer’s instructions as outlined in section 4.1.11, and, upon becoming aware of it, notify the Customer of instructions which, in the opinion of Ducky, infringes applicable privacy legislation. b) implement technical and organisational security measures to protect the Personal Data from loss and unauthorised Processing, to ensure the confidentiality, integrity and availability of the Personal Data according to the GDPR article 32, and, together with the Customer, make sure that these measures represent a level of security appropriate to the risk presented by the Processing, having regard to the state of the art and the cost of implementation. c) notify the Customer without undue delay after becoming aware of a Breach to a reasonable degree of certainty. d) within its obligations as Processor under applicable data protection law, assist the Customer in its role as Controller by appropriate technical and organisational measures, insofar as reasonably possible and taking into account the nature of the Processing and the information available to Ducky, hereunder assisting the Customer in responding to requests for exercising the Data Subject’s rights, ensuring compliance with the obligations pursuant to GDPR articles 32 to 36 and by providing information necessary to demonstrate compliance with applicable data protection law. e) when Ducky’s instructions from the Customer to Process the Personal Data expires for whatever reason, such as termination of the Licence Agreement, return the Personal Data to the Customer or delete it from the Software according to defined deletion policies, unless mandatory provisions of law require continued storage of the Personal Data by Ducky or the Personal Data has been irrevocably anonymised. f) notify the Customer of any request for the disclosure of Personal Data received directly from a Data Subject and from governmental authorities, unless such notification is legally prohibited. Subject to applicable legal obligations, Ducky will not respond to requests from governmental authorities unless authorised by the Customer. Ducky will only disclose Personal Data to governmental authorities to comply with legally binding requests, such as a court order or warrant. g) ensure that the persons authorised to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Ducky shall in an easy and efficient manner make available to the Customer all information necessary to demonstrate compliance with applicable data protection legislation.
Subprocessors
Ducky may use third party subprocessors for the provision and development of the Software and other ancillary services set out in the Contract, hereunder Processing of Personal Data. Ducky will always enter into a data processing agreement with subprocessors if the subprocessor processes Personal Data, in order to fulfil the obligations set forth herein and in the GDPR.
The Customer authorises Ducky to engage other EU/EEA located companies within the Ducky Group as subprocessors without specific notification to the Customer than this section.
Ducky aims to avoid Processing Personal Data outside the EEA and will not process Personal Data in a country outside the EEA that, at the time of Processing, does not enjoy the benefit from an adequacy decision from the EU Commission without the Customer’s prior authorization. To the extent Processing of Personal Data outside the EEA is necessary, for example, in connection with the engagement of certain subprocessors, the Customer hereby authorises and instructs Ducky to Process Personal Data outside the EEA, provided that such Processing is subject to one of the transfer mechanisms set out in Articles 45 and 46 GDPR, for example, the European Commission’s Standard Contractual Clauses, and supplementary measures, if necessary.
An at all times up to date list of subprocessors is available from Ducky at request.
The Customer may reasonably object to the use of a new subprocessor, for legitimate reasons relating to the protection of Personal Data intended to be Processed by such subprocessor, within 30 days after Ducky has notified the Customer in accordance with section 4.7.2. Upon such an objection, the Parties will discuss the Customer’s concerns in good faith with a view to achieving a commercially reasonable solution. If no such solution can be reached, Ducky may, at its sole discretion, either not appoint the new subprocessor, permit the Customer to suspend the affected services, or terminate the Licence Agreement, without any liability to either Party, and without prejudice to any fees incurred by the Customer prior to the suspension or termination.
Security
Ducky is committed to providing a high level of security in our Software, including with regards to Personal Data and privacy protections such as the requirements outlined by GDPR article 32. Ducky provides appropriate security through organisational, technical and physical security measures, designed to ensure the confidentiality, integrity, availability and resilience of the Software, and the Data processed using the Software.
The Customer agrees that it is responsible for independently determining whether the security provided for the Personal Data adequately meets the Customer’s obligations under the applicable data protection laws. The Customer is furthermore responsible for its own secure use of the Software, including protecting the security of Personal Data in transit to and from the Software and securely backuping or encrypting any such Personal Data outside the Software to the extent deemed necessary by the Customer.
Miscellaneous
Confidentiality
Each Party may disclose or obtain information from the other Party that should reasonably be understood to be proprietary, confidential or competitively sensitive (“Confidential Information”). The Parties shall hold Confidential Information in confidence and take reasonable measures to protect the other Party’s Confidential Information, and not disclose it to third parties unless authorised by the other Party to do so, or if required under mandatory provisions of law or regulations or pursuant to court orders.
Confidential Information does not include a) information the recipient can demonstrate was in the recipient’s possession or knowledge prior to entering into the TOS; b) is or becomes publicly available through no fault of the recipient; c) is received by the recipient from a third party without a duty of confidentiality; or d) is independently developed by the recipient.
Ducky may disclose Confidential Information to Partners, subprocessors, or subcontractors to the extent necessary to provide the Software according to the TOS. The Confidential Information may also be shared for the purposes mentioned in section 3.6.
The confidentiality obligations set out in this section 5.1 lapse three years after the expiry of the Licence Agreement, unless otherwise is stipulated by law or regulations.
Intellectual Property Rights
Ducky is the owner of, and retains ownership to, the Software and all related Intellectual Property Rights in and to the Software and any other services provided under the TOS, including any IPR arising out of Ducky’s processing of Data. With the sole exception of the Limited Licence(s) explicitly granted to the Customer under the Licence Agreement, nothing in the Licence Agreement constitutes a transfer of, or licence to, any IPR from Ducky to the Customer.
To the extent Ducky not already has the exclusive ownership thereto, the Customer hereby irrevocably and perpetually assigns to Ducky the worldwide, fully-paid-up, and royalty-free ownership of: (i) anonymised and aggregated Data; and (ii) all rights, titles, and interests, including Intellectual Property Rights, in and to, any application programming interfaces accommodating the integration of the Software with other platforms or software, and other developments designed to facilitate the interaction between the two, if not solely developed and implemented by the Customer. The preceding includes the right to use, modify, and further assign such rights, titles, interests, content, and information.
In the event of infringement of IPR, Ducky may take all reasonable steps to protect its interests as available by law.
Warranty
Ducky shall use commercially reasonable efforts to ensure that the Software will perform substantially as described in the Software Documentation during the Subscription Period, provided it is properly configured (including the Customer’s choice of browser) and updated to a supported version. Supported versions may differ and are available from the Software Documentation. The Customer agrees that the Software and delivery will not be completely error free and that Software improvement is a continuous process.
Ducky does not warrant that the Software will meet the Customer’s requirements, operate correctly with the Customer’s choice of equipment, systems or settings, setup, configuration, modifications, plugins or integrations not performed or controlled by Ducky, or if delivered over the internet, be uninterrupted. Ducky is not responsible for the internet, internet service providers nor the Customer’s internet connection.
If the Software does not function in accordance with the limited warranty specified in this section 5.3, Ducky shall correct confirmed errors or defects in the Software at its own expense. “Confirmed errors or defects” means errors or defects that are reproducible by Ducky and/ or confirmed through Ducky’s support channels, and which occur during the Subscription Period. Ducky may choose to replace the Software or functionality instead of performing a correction.
If the confirmed error or defect is of a material nature, meaning that the Customer’s ability to use the Software is significantly reduced, and Ducky does not correct confirmed errors or defects or replace the Software within a reasonable period of time, c.f. 5.3.3, the Customer may terminate the Limited Licence for the affected Software. In such a case, the Customer has the right to a pro-rated refund for any Fees for the remaining Subscription Period for the affected Software, starting from the month following verification by Ducky of the errors or defects.
Except as expressly set forth herein, the Customer shall not be entitled to make any claims against Ducky.
Links to websites not controlled by Ducky that appear in the Software, associated webpages or documentation are provided for convenience only. Ducky is not responsible for such websites.
Liability
Ducky is not responsible or liable for the Customer Data, including its content, ownership and legitimacy, nor for Use or other activities performed upon the Customer Data by the Partner.
Ducky’s liability is limited to direct damages. Ducky shall not be liable for any indirect, incidental, consequential, punitive or special losses or damages, including but not limited to any loss of profit, loss of revenue, loss of business, loss of Data, lost savings, claims from third parties, loss of goodwill etc.
Total accumulated liability for Ducky during the Subscription Period shall in total not exceed an amount equalling 12 months’ Fees for the affected Software immediately preceding the event giving rise to liability.
Neither Party shall be liable for delay or failure in performance arising out of force majeure, including earthquake, riot, labour dispute, pandemics, swift or new temporary legislation pertaining to the internet, governmental or EU sanctions and other events similarly outside the control of the Parties. Cyber attacks that Ducky has not been able to prevent by reasonable measures are regarded as a force majeure event. In the event of legislation, directives or regulations being changed swiftly, or new legislation or directives being passed after the Software have been made available, preventing Ducky from fulfilling obligations under the TOS, in whole or in part, temporarily or indefinitely, this shall be considered a force majeure event. If a subcontractor extraordinarily increases its fees towards Ducky partially or fully due to a force majeure event, or if Ducky due to a force majeure event is required to switch to a subcontractor with increased fees to sustain Software delivery, Ducky reserves the right to adjust its Fees towards the Customer accordingly and with notice as specified in 1.2.4.
The Customer acknowledges that the internet is an open system and that Ducky does not warrant or guarantee that third parties may not intercept or modify the Data. Ducky is not liable for such misuse, disclosure or loss.
Indemnification
Ducky undertakes, at its own expense, to indemnify the Customer against damages resulting from a third-party claim against the Customer asserting that the Software provided to the Customer under the Licence Agreement, or Use thereof, infringes the third party’s IPR, if the claim has been finally settled in favour of the third party by a competent court or in a settlement approved by Ducky.
Ducky’s obligation to indemnify the Customer pursuant to section 5.5.1 only applies if: (i) the Customer notifies Ducky immediately upon becoming aware of the claim; (ii) the Customer gives Ducky full control of the negotiations, legal processes, and settlement, if applicable; (iii) the Customer cooperates with Ducky in accordance with Ducky’s reasonable instructions; (iv) the claim is not related to, or caused by, the Customer’s breach of the TOS or Ducky’s instructions for preventing or mitigating the potential or actual IPR infringement; and (v) the claim is not related to, or caused by, use, modification, integration, or customisation not carried out, or approved in writing, by Ducky.
Upon becoming aware of a potential or actual IPR infringement, Ducky may at its discretion: (i) modify the Software so that it is not in conflict; (ii) replace the Software, or parts thereof, with a functionally equivalent software, (iii) obtain a licence for the Customer’s continued use of the Software; or (iv) revoke the Customer’s Limited Licence to Use the Software against a refund of Fees paid in advance for the part of the Subscription Period exceeding the termination date. The remedies set out in this section 5.5 are the Customer’s sole remedies with respect to third-party IPR infringement claims.
The Customer shall, at its own expense, defend Ducky against claims or litigation where a third party claims that the Data, or use thereof, or the Customer’s use of the Software in violation with the Licence Agreement: (i) is in conflict with or infringes the third party’s IPR or other rights; or (ii) is in breach of applicable law. Ducky shall without undue delay notify the Customer of such claims. The Customer shall indemnify Ducky for damages imposed under a court-approved settlement or court ruling, including lawyer fees, provided that Ducky reasonably cooperates at the Customer’s expense and gives the Customer control of the legal process and settlement.
Termination
The Customer and Ducky may terminate individual Software for convenience, in writing, according to the terms specified in the Contract. Terms may vary from Software to Software. Unless otherwise agreed in writing between the Parties, including in the Contract, the Parties may terminate the Licence Agreement for convenience upon three months’ prior written notice, effective as of the last day of the third month.
Ducky shall always have the right to terminate the Licence Agreement with immediate effect if (i) the Customer or its management has been sentenced or suspected to violate the local laws or (ii) the Customer or its management is or becomes subject to, or operates in a country that is or becomes subject to, the sanctions imposed by the EU or United Nations from time to time.
If a breach of the Customer’s obligations under the Licence Agreement is confirmed or suspected on reasonable grounds, or if the Customer files for a petition in bankruptcy or insolvency or assigns a substantial portion of its assets to the benefit of creditors, or the Customer commits or threatens Ducky to make unlawful or offensive actions, Ducky may suspend the Customer’s access, until the matter is resolved. Ducky gives prior notification and the Customer reasonable time to respond before restricting access, and reserves the right to terminate the Limited Licence(s) granted herein and the Licence Agreement if the Customer fails to remedy or correct its actions. Ducky may at its discretion terminate the Limited Licence(s) granted herein with immediate effect if the Customer is in material breach of the Licence Agreement.
Upon termination, or when the Customer instructs Ducky in writing to cease the relevant Processing of Personal Data on behalf of the Customer, Ducky will delete the Personal Data from its systems within reasonable time, unless mandatory provisions of law or court orders require otherwise. In the event Ducky is legally required to not delete the Personal Data, Ducky will continue to maintain the security of the Personal Data as set out in the TOS. The timeframe within which the Personal Data will be deleted varies from Software to Software. After deleting the Personal Data, Ducky has no further obligations towards the Customer in regards to Personal Data processed on behalf of the Customer.
The Customer may request the return of Personal Data within 30 days following termination, or the data may be irrecoverably deleted. Return of Personal Data will be in a format, time and method of delivery determined by Ducky, and may vary from Software to Software. Ducky reserves the right to charge its, at the time, standard rates for such returns.
Immediately upon the termination of the Licence Agreement, for whatever reason, the Limited Licence(s) granted to the Customer are revoked automatically, and the Customer undertakes to cease using the Software.
Governing law and dispute resolution
The Customer is contracting with the Ducky Company from which the right of use for Software was ordered, as evident from the Contract and invoice.
The Licence Agreement is governed by and must be construed in accordance with the laws of the country in which Ducky has its head office, excluding any conflict of law provisions. A dispute in connection with, or arising out of, the Licence Agreement, or the use of the Software, shall be attempted to be resolved through amicable negotiations, and the Customer agrees to take part in such, including on e-mail and verbal meetings/phone calls on Ducky's request. If amicable negotiations do not result in a mutually acceptable solution, the Parties agree to refer the dispute to the ordinary courts of the country, and region, in which Ducky has its head office as the exclusive venue. Ducky is entitled to decide that the proceedings shall be held in English, to the extent possible.
The Parties agree not to bring claims arising out of the Licence Agreement when more than one year has passed after its termination.
In cases of doubt over interpretation between the TOS in English and any other language, English shall take precedence.
