GENERAL TERMS & CONDITIONS
1. The Contract
1.2 FaunaPhotonics A/S, Danish Reg. No. 35642986, Støberigade 14, DK-2450 Copenhagen SV, Denmark, (hereinafter referred to as “FaunaPhotonics”) produces a number of software services (hereinafter collectively referred to as “the Application”) available to customers (referred to as the “Customer”) who wish to use the software. The Application consists of a number of products (or packages) which are selected individually. Some products have an associated physical product (hereafter collectively refer to as “Hardware”), which is included in the overall product. A subscription is taken out for each product, which is prepaid for a period (hereinafter refer to as the “Subscription Period”), which appears when ordering the product.
1.2 These terms and conditions (hereinafter referred to as “the Terms and Conditions”) apply between FaunaPhotonics and the Customer.
1.3 These Terms and Conditions become binding upon (i) accessing and using the Application (Customer Portal) via https://app.faunaphotonics.com/, smartphone, or tablet, (ii) by consenting to the Terms and Conditions during user account creation, or (iii) expressing explicit acceptance of these Terms and Conditions in writing. If a Customer does not agree to these Terms and Conditions, they must cease using the Application immediately.
2. Duration
2.1 The subscription becomes effective upon receiving an order confirmation from FaunaPhotonics, or at an agreed later date stated in writing, and remains active until terminated as per the Terms and Conditions. If the product includes Hardware, the subscription becomes effective the day the Hardware is delivered to the Customer.
2.2 If the subscription is terminated or ceases in some other manner, the Customer must return the Hardware to FaunaPhotonics following the procedure detailed in section 10.
3. Prices and Changes
3.1 The subscription prices for the products will be determined in the order confirmation from FaunaPhotonics, when the project is signed by the Customer through the Applocation https://app.faunaphotonics.com/.
3.2 The subscription prices and the Terms and Conditions can be changed upon giving 1 month’s written notice at the start of a calendar year. Such notice may include revisions to data content, number of users, number of field sensors, functionality etc.
3.3 FaunaPhotonics is constantly working to improve the Application and the services made available to the Customer. Therefore, it is necessary that the Application is continuously updated, improved and/or changed. Such updates or changes may be made without prior notice at the sole discretion of FaunaPhotonics.
3.4 Continued use of the Application by the Customer after the Terms and Conditions have been revised represents acceptance of such revisions. The Customer is obliged to keep updated in relation to revised Terms and Conditions, which are made regularly available on FaunaPhotonics’ website.
3.5 In the event that updates to the Application or revisions of the Terms and Conditions significantly affect the functionality of the Application, or result in a change of subscription prices, the Customer has the right to terminate the Subscription before the start of a new Subscription Period with written notice one month prior to the start of a calendar year.
4. Payment Terms
4.1 Order confirmation, invoices and other communications with the Customer will be sent to the email address registered by the Customer. The Customer is responsible for updating its own contact details, and ensuring they are kept up-to-date at all times.
4.2 Payment terms are current month plus 30 days from receiving the order confirmation. The Hardware needed for the Application can first be sent when payment is received, unless a special agreement has been made between FaunaPhotonics and the Customer. In the event of overdue payment, a reminder will be sent, and an interest charge and any other additional costs will be applied in accordance with the applicable rules of the Danish Interest Act. Payments by the Customer shall be made in the currency stated in the order confirmation or invoices, unless another currency is agreed upon in writing by FaunaPhotonics.
4.3 The subscription prices are paid on a yearly basis, meaning the Customer pays for a year at a time, even though the Subscription Period is a minimum of 24 months. The subscription automatically rolls over to the following year, when the Customer has prepaid for the next year, at the beginning of the year.
4.4 If overdue payment is still not received within 14 days of the first reminder, the Customer’s access to the Application and all services will be suspended. Access to the Application will not be re-established until all overdue payments (including interest and any other additional costs) are paid in full. FaunaPhotonics reserves the right to demand payment in advance to reinstating its services in conjunction with the Application.
5. Subscription
5.1 According to the Terms and Conditions, FaunaPhotonics will grant the Customer non-exclusive and limited period access to use the Application during the Subscription Period, made available online as data-as-a-service. Access to the Application and the product is contingent on the Customer’s payment of the subscription. The Customer is granted no rights to the Application or parts thereof, and use of the Application is strictly limited for uses that are applicable to the Customer’s own business interests.
5.2 The Customer’s subscription gives the Customer access to use one or more products in the Application for the number of users, field sensors, data analytics, etc. that are outlined in the selected subscription solutions.
5.3 The Customer can purchase additional subscription solutions. Some solutions / services may be subject to individual terms that must be accepted when purchasing such services. These separate terms take precedence over the Terms and Conditions.
5.4 When the product contains Hardware, FaunaPhotonics will provide the Hardware to the Customer during the Subscription Period as part of the subscription. The Customer has an exclusive right to use the specific Hardware as part of the subscription. The Hardware is the property of FaunaPhotonics, and the Customer is only granted the right to use it, as a part of the subscription.
6. The Customer’s Use of the Application
6.1 The Customer is not entitled to give any third-party access to the Application, if such a third party is not part of the Customer’s business operations. The Customer is responsible for any use and/or misuse of its login details. The customer guarantees and is responsible for any use and/or misuse of its login information.
6.2 If the subscription is for additional accounts associated with third parties working with the Customer, the Customer must set up these additional accounts. Any third-party accounts must be associated directly with the Customer’s business operations.
6.3 The Customer is not entitled to assign its rights according to the Terms and Conditions to a third party in whole or in part.
6.4 The Application can only be used for its intended purposes. Any extraction of data can only be made by the Customer, for its own use, using data sets which have been generated from the Hardware (i.e. field sensors), as is specified in the Application. This includes extraction of any data insights, including data reports.
7. Data
7.1 The Customer owns and has an unlimited right to use its own data as is specified in the Application.
7.2 Analyses, maps, data gathered by the Hardware etc. and provided to the Customer via the Application are owned by FaunaPhotonics. FaunaPhotonics can use this data for all purposes. However, if this data is made publicly available by FaunaPhotonics or used for promotion, it can never be directly or indirectly linked to the Customer.
7.3 Some of the maps and other data within the Application may originate from external sources that are publicly accessible, and FaunaPhotonics has the right to deliver this data to the Customer through the Application.
7.4 Please click here to see our Privacy and Cookie policy for further information on how FaunaPhotonics uses the Customers data and to what purpose.
8. Data Security
8.1 Please click here to see our Privacy and Cookie policy for further information on your Data Security.
9. Uptime
9.1 When Hardware is involved in the subscriptions, FaunaPhotonics aims, but does not guarantee, for an uptime of the Hardware of at least 90%.
9.2 FaunaPhotonics’ field sensors are optimally designed to operate from one (1) hour before sunrise until one (1) hour after sunset and will automatically turn off at temperatures below eight (8) degrees Celsius. This is referred to in the 'Standard Operational Schedule.'
9.3 The Standard Operational Schedule commits to maintaining a sensor uptime of at least 90% under the conditions that there is at least 12 hours of daylight. This commitment is based on the sensor's ability to operate effectively within the specified environmental and operating conditions.
9.4 While FaunaPhotonics provides the flexibility for customers to set their preferred operational schedules, including continuous (24/7) operation, it should be noted that such customizations may impact sensor performance and uptime. The 90% uptime commitment is specifically applicable to the Standard Operational Schedule.
9.5 Given that FaunaPhotonics’ sensors are solar powered, their performance may be influenced by weather conditions, particularly during periods with insufficient sunlight. Downtime due to such weather-related exceptions will be excluded from the uptime calculation.
9.6 Uptime reservations are also made for lost or slow data connection to Hardware, as damage or defects may occur to the Hardware or the connection itself may be unstable or disconnected.
9.10 Planned disruptions, including maintenance and digital updates, will primarily be executed between the hours of 00.00-04.00 CET. FaunaPhotonics will endeavor to provide the Customer at least 24-hours prior notice of any disruptions outside this period.
9.11 Regardless of 9.6, FaunaPhotonics may, with a very short deadline, for example for security reasons, be forced to suspend access to the Application or certain features due to required updates, etc. of the Application to avoid loss and damage. FaunaPhotonics will, as much as possible, inform about this per email, including the expected duration of the obstacle.
10. Hardware
10.1 FaunaPhotonics owns all Hardware included in the Products.
10.2 Hardware will be delivered to the Customer to the agreed Customer address and in the timespan agreed between FaunaPhotonics and the customer.
10.3 The functionality of our Hardware requires access to a suitable mobile network with adequate data coverage at the location.
10.4 Expenses for any transport of Hardware from the Customer to FaunaPhotonics e.g. in connection with updating, repairing or replacing Hardware is the responsibility of the Customer, regardless of the reason for the return. Unless otherwise agreed in writing, Hardware will be sent to FaunaPhotonics’ Headquarters address. The return of the Hardware is at the Customer’s risk and the Hardware must be packed in accordance with instructions given by FaunaPhotonics.
10.5 Some types of Hardware, such as batteries and special sensors, have a limited life. FaunaPhotonics is responsible for determining when the Hardware needs servicing or updating to ensure its desired functionality. FaunaPhotonics is responsible for sending a message to the Customer either by email or in the Application when the Hardware in connection with the Application needs to be serviced or updated. The Customer is responsible for sending the Hardware to FaunaPhotonics within 45 days of such notice. A replacement of the Hardware will be delivered to the Customer after agreement with the Customer.
10.6 In the event that Hardware is damaged during normal use, the Customer must report this to FaunaPhotonics support immediately and no later than 7 days from the detection of said damage. Customers must then return the Hardware to FaunaPhotonics for replacement in accordance with section 10.4.
10.7 In the event that the Hardware is damaged by a sudden and/or unique event, including weather, vandalism or theft, the Customer is required to pay a one-time replacement fee of Euro 1,000, ex-works. In the event of repeated instances, FaunaPhotonics reserves the right to terminate the subscription without notice. In the event where damage is caused by the Customer’s actions or negligence, including, for example, the Customer’s non-compliance with the maintenance guidelines, FaunaPhotonics is entitled to invoice a new one-year subscription, and potential startup fee, if applicable, for the product related to the Hardware. FaunaPhotonics is then obligated to send new replacement Hardware to the Customer.
10.8 The Customer shall treat the Hardware with care and only use it for its intended purpose in accordance with the Application. The Customer is responsible for the maintenance of the Hardware in accordance with the maintenance guidelines provided with the Hardware, that have been sent by FaunaPhotonics.
10.9 FaunaPhotonics does not provide any on-site services to the Customer. The customer is responsible for the setup, installation, disassembly and troubleshooting according to the instructions provided by FaunaPhotonics with the delivery of the Hardware, including any updates provided by FaunaPhotonics’s at a later date. On-site troubleshooting is thus performed by the Customer, and if necessary, the Customer must remove, package and return the Hardware to FaunaPhotonics on the instruction of FaunaPhotonics.
10.10 After the expiration or cancellation of the Subscription Period, the Customer must return the Hardware to FaunaPhotonics, if the Customer resides within the EU. The shipping cost shall be the responsibility of the Customer. If the Customer resides outside of the EU, FaunaPhotonics may alternatively choose to provide guidance for proper disposal and or recycling of the Hardware.
11. Intellectual Property Rights
11.1 FaunaPhotonics retains all intellectual property rights to software solutions, which FaunaPhotonics has developed and used for delivering the Application or that are used for operating the Hardware, as well as to any software solutions which FaunaPhotonics develops in relation to the Application, or in relation to operating the Hardware, including any artificial intelligence developed by use of information rightfully available to FaunaPhotonics. All information, analyzes and reports, as well as all databases consisting of collected data or generated by the Application is the sole property of FaunaPhotonics and are protected under copyright law and other intellectual property rights. The Customer has no rights to the intellectual property of the Application or any underlying information, analyzes, reports, databases, etc.
11.2 Customer’s access to and use of data provided by the Application is non-exclusive unless otherwise explicitly limited in writing. Subject to any agreed limitations, FaunaPhotonics shall be free to use data collected by Hardware, processed by FaunaPhotonics or provided to Customers via the Application.
11.3 Further, all inventions, patents and patent applications, copyrights, trademarks, designs, know-how, information embodying proprietary data such as information about algorithms, source code, techniques, concepts, configurations, methods and processes existing and owned by FaunaPhotonics before the commencement of the subscription between the FaunaPhotonics and the Customer and developed or conceived by FaunaPhotonics during the term of the Subscription period remain sole property of FaunaPhotonics.
11.4 The Customer is not permitted to remove or cover FaunaPhotonics’ name or trademarks on Hardware or the Application.
11.5 The Customer shall immediately inform FaunaPhotonics of any infringement of FaunaPhotonics’s intellectual property rights that the Customer becomes aware of.
12. Transfer of Rights and Undertakings
12.1 FaunaPhotonics can transfer its rights and undertakings in accordance with the Terms and Conditions to a third party without any prior consent.
12.2 The Customer cannot transfer its subscription and/or rights and undertakings in accordance with the Terms and Conditions to any third party.
13. Disclaimer
13.1 FaunaPhotonics does not guarantee that the data, information, analyses and/or reports associated with the Application is 100% accurate. The Customer is responsible for the actions it takes based on such data, as the data can only form the basis for conclusions or actions based on the Customer’s own interpretation thereof. FaunaPhotonics assumes that the Application data is used only by professionally competent people. The Application presents a number of indicative recommendations. The Customer is responsible for their actions based on the guiding recommendations.
13.2 FaunaPhotonics is not responsible for any indirect losses in connection with the use of the Application, including for operating losses, production losses, consequential damages or other indirect losses, loss of data, or other losses as a result of the Customer’s use of the analyses, recommendations and data derived from the Application.
13.3 FaunaPhotonics is not responsible for any direct and/or indirect losses in relation to the use of the Application in connection with compensation and insurance cases, where the Application and the services and data contained therein are used as evidence.
13.4 Regardless of the type of loss or grounds for liability, FaunaPhotonics’s total liability in terms of an amount cannot exceed the Customer’s subscription payments to FaunaPhotonics for the 12 months prior to the occurrence of the liability-incurring event.
13.5 The above disclaimer and limitations also apply in the event of product liability claims, unless mandatory legal rules prevent such disclaimers and limitations. These limitations will not apply in the event that FaunaPhotonics is deemed to have acted intentionally with gross negligence or with willful misconduct.
14. Duty of Confidentiality
14.1 FaunaPhotonics has a duty of confidentiality regarding any information which it may obtain about the Customer, unless such information is publicly available, or unless FaunaPhotonics is obliged to disclose the information in accordance with law or by order of a court.
15. Duration and Termination of Subscription
15.1 The Subscription Period is for a minimum of 24 months, and if the subscription has not been terminated beforehand, cf. 15.2, the subscription is automatically extended with a new Subscription Period. A longer Subscription Period may be mutually agreed to by the Parties at any time.
15.2 The Customer can contact Customer Service to terminate or change its subscription upon giving 1 months’ written notice before the end of the Subscription Period. FaunaPhotonics can terminate the subscription upon giving 3 months’ notice before the end of a Subscription Period without cause.
15.3 In the event of a material breach of the Terms and Conditions by either Party, the other Party can cancel all subscriptions, providing the Party in breach fails to remedy the situation within 14 days of a written request to do so by the other Party.
15.4 In the event of premature termination by the Customer, ref. Clause 3.5, or the Customer’s cancellation of the subscription, FaunaPhotonics shall refund the prepaid amount of the unused portion of the subscription as soon as possible.
16. Jurisdiction and Court of Venue
16.1 The Agreement and all contractual claims arising from the Agreement shall be subject to the laws of Denmark with exclusion of the conflicts of laws of private international law and the UN Convention on Contracts for the International Sales of Goods (CISG).
16.2 Any dispute between the Parties shall first be attempted to be solved through mutual, loyal and forthcoming negotiations. In case it is not possible to reach and agreement, any dispute between the Parties shall be settled by the Danish Institute of Arbitration. The place of arbitration shall be Copenhagen, Denmark, and the language of the proceedings shall be English.
17. Communication
17.1 All press releases and other publications on websites, feeds etc. of the existence and background for the Agreement may only occur with the acceptance of the other Party of content as well as timing and whether there should be issued a press release or publication.
17.2 FaunaPhotonics reserves the right to send news articles, blog updates and other marketing materials via email to the Customer, e.g. when there are updates to the Application, new product launches, etc.
The Terms and Conditions are version 1.2 and are valid from 01-05-2024 and replace any previous Terms and Conditions.