– Terms and Conditions
These terms were updated and effective as of 14th April 2014.
This is a legal agreement (“Agreement”) between Customer and BendixKiel. BY ACCESSING AND/OR USING THE SERVICE(S), YOU ARE AGREEING, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, TO BE BOUND BY THE MOST RECENT TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE(S).
This Agreement between BendixKiel and you governs your use of the SmartGantt service (“SmartGantt”), and the website (www.smartgantt.com) including, without limitation, all content such as text, information, images, applications, templates software and other information, services and materials (collectively, the “Service”) and all information made available to you or by you through this site by SmartGantt, BendixKiel, and/or third parties. The “Customer” shall mean the entity or person invoiced by BendixKiel for use of the Service, and “You” or “User” shall mean a unique user of the Service whether a Customer or not (as defined by unique URL, IP address or other unique identification).
This Agreement comprises the entire agreement between you and BendixKiel and supersedes any and all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.
BendixKiel, in its sole discretion, reserves the right to revise, update and change this Agreement from time to time without notice to you, and you agree to be bound by such modifications or revisions. Any new features that augment or enhance the current Service, including the release of new features and resources, shall be subject to this Agreement. You agree to use the Service at your own risk and you understand that neither SmartGantt nor BendixKiel is responsible for the content posted on the Service. You can review the most current version of this Agreement at any time at www.smartgantt.com/terms.
1. Service Plans
The Service is available either as a paid service plan (a “SmartGantt Paid Account”) or as a free 14 days trial. A free trial is a service plan where the user gets access to try out the SmartGantt service without paying a fee during these first 14 days. Each SmartGantt Paid Account invoiced to and paid by the Customer in accordance with Section 2 herein comprises a single Smartgantt user.
Payment for Services under a SmartGantt Paid Account shall be at prices and under terms stated on the SmartGantt website, or as otherwise stated or quoted by BendixKiel from time to time. All prices are exclusive of VAT, which will be payable (where applicable) in addition to the Fees.
All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
BendixKiel is entitled to adjust the prices, functionality and number of Users or Items for the Service from time to time. Adjusted prices shall take effect upon any subsequent term of the Service.
Payment shall be made automatically by charges assessed against the Customer’s credit card or by other designated payment method, as noted on the SmartGantt website, or as otherwise instructed by BendixKiel from time to time.
In case of non-payment for any reason or any violation of these Terms and Conditions, BendixKiel shall be entitled – without liability – to immediately bar Customer’s access to the Service and bar access to the service plan in question, and to terminate Customer’s account.
In case of termination of account, BendixKiel reserves the right to impose a reconnection fee in the event Customer requests to resume access to the Service. Customer agrees and acknowledges that BendixKiel has no obligation to retain Uploaded Data and that such Uploaded Data may be irretrievably deleted if the account is 30 days or more delinquent.
3. Right of Use
At the time of entering into this Agreement, the Customer or User is granted a non-exclusive, non-transferable, worldwide right to use the Service, solely for Customer’s or User’s own internal business purposes, subject to this Agreement. All rights not expressly granted to You are reserved by BendixKiel.
The right of use is at all times conditioned on compliance with the terms of this Agreement, and for Customer, prompt and timely payment regarding the Service. Breach of any term of this Agreement, or non-payment or delay in payment shall terminate any right of use granted to the User or Customer under this Agreement.
The Service may not be used in any way that is illegal or promotes illegal activities or in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or is otherwise indecent.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) create Internet “links” to the Service or “frame” or “mirror” any content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) use the Service, including the content, our intellectual property rights, SmartGantt technology and our trademarks and service marks for any commercial purposes (i.e. soliciting customers, resale, etc.) without our prior written consent.
Access to the Service is available at www.smartgantt.com. Upon entering into a contract with the Customer or User, SmartGantt will provide the Customer or User with a username and password for accessing the Service.
You must be a registered user to access the Service. You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name.
Access to the Service is only available to the Customer and Users, subject to compliance with these Terms and Conditions and, in the case of Customer, making the applicable payments for the Service under this Agreement.
Usernames and passwords are personal, and are to be considered part of Confidential Information. The User or Customer is at all times fully liable for all acts and omissions by Users whom the User or Customer has granted access and agrees to indemnify BendixKiel for all claims and losses related to such acts and omissions.
5. Service Level
SmartGantt will at all times reasonably attempt to achieve the highest possible availability and shortest possible access time of the Service, but no warranties of any kind, regarding any specific availability or time of access are granted. The Service is hosted by a subcontractor of BendixKiels choice. SmartGantt only store data related to your Podio profile and minimal information related to the schema of the apps and referenced apps of your Gantt Charts. SmartGantt do not store any data from within your Podio apps in our database for privacy reasons. All data displayed is retrieved using the Podio API at runtime to ensure this.
6. Your Responsibilities
You are responsible for all activity occurring under your User or Customer account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. In addition, you shall be responsible for abiding by any and all internal policies, procedures and regulations, which are required, by your employer and/or the applicable administrators of your account. You shall: (i) notify BendixKiel immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to BendixKiel immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by You or other users to violate this Agreement or the intellectual property rights of third parties; and (iii) not impersonate another SmartGantt user or provide false identity information to gain access to or use the Service. By accessing the Service, You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
SmartGantt only store data related to your Podio profile and minimal information related to the schema of the apps and referenced apps of your Gantt Charts. SmartGantt do not store any data from within your Podio apps in our database for privacy reasons. All data displayed is retrieved using the Podio API at runtime to ensure this.
BendixKiel does not own any data, information or material that You or others submit to the Service in the course of using the Service (“Uploaded Data”). You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any and all Uploaded Data that You submit. BendixKiel shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Uploaded Data.
The Customer and/or User are fully liable for the legality of all Uploaded Data stored by the Customer and/or User on the Service. Furthermore the Customer and/or User is fully liable, if such Uploaded data is infringing upon third party rights, and accordingly agrees to indemnify BendixKiel for all claims and losses related to such infringement and/or illegality.
If BendixKiel on its own or through any third party has notice that Uploaded Data stored by the Customer and/or User is in violation of any law or infringes third party rights, BendixKiel shall have the unfettered right to – without liability to the Customer or User – immediately suspend access to such data without prior notice to the User or Customer. The Customer and/or User may be notified by BendixKiel of any such action under this Section, when reasonable and possible.
To the extent that any Content constitutes personal data within the meaning of the Data Protection Act 1998, the Customer and/or User warrant that you are the data controller in respect of that Content, and agree to indemnify SmartGantt in respect of any claim by a third party that any processing of such personal data by means of the Service does not comply with the Data Protection Act 1998 (or any other applicable legislation concerning the processing of personal data).
The Customer and/or User agree that SmartGantt process such personal data as data processor on your behalf, and not as a data controller. SmartGantt agree to process such personal data only as permitted under these terms or as otherwise agreed with the Customer and/or User, and to comply with the seventh data protection principle as regards such personal data.
The Customer and/or User acknowledge that SmartGantt may process the Content, including any personal data, using servers or other equipment located outside the European Economic Area.
8. Intellectual Property Rights
BendixKiel alone (and its successor or assigns, or its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the SmartGantt technology, the content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, SmartGantt technology, or intellectual property rights. The SmartGantt name, the SmartGantt logo, and the product names associated with the Service are trademarks of BendixKiel or its affiliated companies, and no right or license is granted to use them.
All copyrights and/or other intellectual property rights, title and interests in a) software on which the Service is based and made available to the Customer and/or User, b) source codes or other software components of the Service, c) content of the website www.SmartGantt.com and the Service including text and graphics, excluding Uploaded Data, d) trademarks, names etc. are the sole property of BendixKiel and its affiliated companies, and/or third parties having granted BendixKiel license for its use, and the Customer and/or User shall gain no rights to said intellectual property rights other than the limited right of use as stipulated in this Agreement.
The Customer and/or User shall not reproduce or redistribute any software, content or trademarks, intellectual property in any form, except as allowed in this Agreement.
The Customer and/or User retain all intellectual property rights to Uploaded Data stored by such Customer and/or User on the Service.
You acknowledge and agree that SmartGantt may occasionally send you communications regarding your account or the Service via email. SmartGantt will not forward marketing material from third parties to Users. SmartGantt will forward product news relevant to User’s use of the Service as SmartGantt sees fit from time to time. BendixKiel will register the Customer and/or Users contact details in the Citrix Referral system.
10. Representations & Warranties
You represent and warrant that you have the legal power and authority to enter into this Agreement. BENDIXKIEL WARRANTS THAT (i) ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER; (ii) THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE APPLICABLE SERVICE DOCUMENTATION UNDER NORMAL USE AND CIRCUMSTANCES; AND, (iii) THE FUNCTIONALITY OF THE SERVICES WILL NOT BE MATERIALLY DECREASED DURING THE TERM. BENDIXKIEL’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT THE SOLE OPTION OF BENDIXKIEL AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICE(S) WHICH CONFORMS TO THESE WARRANTIES OR TO TERMINATE THE SERVICE(S).
You shall defend, indemnify and hold BendixKiel, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Service or any Uploaded Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of your representations and warranties made herein; or (iii) a claim arising from the breach by You or other Users of this Agreement.
12. Disclaimer of Warranties
BENDIXKIEL AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. BENDIXKIEL AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BENDIXKIEL AND ITS LICENSORS. BENDIXKIEL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
BendixKiel will provide the Service with reasonable care and skill, and will make reasonable endeavours to ensure the Service is available at all times during normal working hours, except for scheduled maintenance which we will notify on the Website.
13. Limitation of Liability
IN NO EVENT SHALL BENDIXKIEL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT BENDIXKIEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BENDIXKIEL’S LIABILITY HEREUNDER IS LIMITED TO $50.00. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
14. Force Majeure
Neither Party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a Party.
15. Term and Termination
SmartGantt Paid Account is pre-paid and is non refundable. BENDIXKIEL DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OF USE OF THE SERVICE. If you wish to terminate your account then you must do so by using the means provided for account cancellation on the Service. We will not accept notices of cancellation given by any other means.
Should you elect to cancel your SmartGantt Paid Account, please note that you will not be issued a refund for any charged and paid fees. It is your responsibility to keep your contact and payment information current. You explicitly authorize BendixKiel to continue billing your credit card on file with us for as long as you continue using the Service, and in the event that your credit card is invalid for payment for any reason, then you remain responsible for any uncollected amounts.
16. Modification to Terms
BendixKiel reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the SmartGantt website at www.smartgantt.com/terms. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
If BendixKiel fail, at any time during the term of this agreement, to insist on strict performance of any of the Customer and/or User obligations under these terms, or if BendixKiel fail to exercise any of the rights or remedies to which BendixKiel are entitled under these terms, this will not constitute a waiver of those rights or remedies and will not relieve the Customer and/or User from compliance with such obligations.
A waiver by BendixKiel of any default will not constitute a waiver of any subsequent default.
No waiver by BendixKiel of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to the Customer and/or User in writing.
This Agreement may not be assigned by you without the prior written approval of BendixKiel, but may be assigned without your consent by BendixKiel to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
Unless expressly authorized in writing by the other Party, neither Party shall disclose to any third party any Confidential Information of the other Party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. Confidential Information means any non-public information and/or materials provided by a Party under this Agreement to the other Party and reasonably understood to be confidential, but shall not include Uploaded Data.
The foregoing restrictions do not apply to any information that (i) is publicly disclosed through no fault of the receiving Party, (ii) is already lawfully in the receiving Party’s possession and not subject to a confidentiality obligation to the disclosing Party, (iii) becomes known to the receiving Party from a third party having an apparent bona fide right to disclose the information, or (iv) is Confidential Information that the receiving Party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving Party supplies disclosing Party with timely notice of such court order or subpoena. Furthermore, Customer and User will keep in confidence all passwords and/or other access information related to the Services. Customer and User acknowledge that BendixKiel and its licensors retain all intellectual property rights and title, in and to, all of their Confidential Information and/or other proprietary information. This shall include, but not be limited to: products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the Services provided by BendixKiel hereunder.
Support is available via email firstname.lastname@example.org
21. Law and Jurisdiction
This agreement shall be subject to and governed by Danish substantive law without giving effect to the choice of law principles thereof. Disputes shall be settled by the ordinary courts in Denmark.