Terms of use

Gen­eral Terms and Con­di­tions for all Ser­vice and ac­cess to this Site.

Definitions

In these terms and con­di­tions the fol­low­ing words shall have fol­low­ing mean­ings:

“Archive” shall mean archive of data stored on be­half of its cus­tomers which archive may be on­line and/​or of­fline;

“Archiv­ing Ser­vice” shall mean the stor­age of data up­loaded to the Ser­vice in the name of a cus­tomer in the Archive;

“Bugs” shall mean viruses, worms, logic bombs, time locks, time bombs, Tro­jan horses and bugs;

“Cus­tomer” shall mean the in­di­vid­ual cus­tomer us­ing the Ser­vice pur­suant to this Con­tract;

“Data” shall mean all data up­loaded by or on be­half of the Cus­tomer to the Site;

“Di­rect De­liv­ery” shall mean the de­liv­ery of data elec­tron­i­cally and/​or by any and all forms of tele­phony to in­clude by and via the In­ter­net and/​or any fixed line;

“Per­mit­ted Ac­cess” shall mean ac­cess to non pub­lic ar­eas of the Site such as a Work­space with or with­out au­thor­ity to in­cur charges on be­half of the Cus­tomer;

“Per­mit­ted User” shall mean those per­sons nom­i­nated by the Cus­tomer to whom a pass­word shall be al­lo­cated and who shall have Per­mit­ted Ac­cess;

“Play­out Or­der Form” shall mean the play­out or­der form for com­ple­tion in and sub­mis­sion via the on­line or­der­ing fa­cil­ity com­prised in the Ser­vice;

“Ser­vice” ac­cess to the ioGates.com ap­pli­ca­tion through the Site and the ser­vices and fa­cil­i­ties pro­vided via the Site from time to time to in­clude ac­cess to des­ig­nated Work­space and the Archiv­ing Ser­vice to­gether with ac­cess to and/​or use of ad­di­tional sup­port ser­vices in con­nec­tion with the Cus­tomer’s and Per­mit­ted User’s use of all such fa­cil­i­ties and ser­vices;

“Site” shall mean the web­site lo­cated at http://​www.io­gates.com or such ad­dress as ioGates may from time to time sub­sti­tute there­fore;

“Up­load Charges” charges in­curred for up­load­ing data to the Site whether to a Work­space or to the Archive, the cur­rent rates for which are quoted on the Site;

”Work­space” an area (Ap­provals and Li­brary) of the Site which may only be ac­cessed by the Cus­tomer and Per­mit­ted Users and to which data may be up­loaded for re­view and ap­proval by Per­mit­ted Users;

“This Con­tract” these terms and con­di­tions.

The Service

All Ser­vice and ac­cess to this Site shall be sub­ject to these Terms and Con­di­tions.

The Ser­vice is sub­ject to ioGates’ ac­cep­tance of the Cus­tomer’s ap­pli­ca­tion and es­tab­lish­ment of an ac­count.

Upon ioGates’ ac­cep­tance of the Cus­tomer’s ap­pli­ca­tion a pass­word will be al­lo­cated to the Cus­tomer us­ing a cur­rent email ad­dress to be­come a user of the Ser­vice.

On es­tab­lish­ment of an ac­count with ioGates, the Cus­tomer shall have the abil­ity to nom­i­nate Per­mit­ted Users and shall spec­ify the ex­tent to which in­di­vid­ual Per­mit­ted Users may have Per­mit­ted Ac­cess. Each Per­mit­ted User will be al­lo­cated a pass­word by ioGates. It is the re­spon­si­bil­ity of the Cus­tomer to no­tify ioGates via the Ser­vice of fur­ther Per­mit­ted Users or to re­quest that ioGates re­vokes some or all of a Per­mit­ted User’s Per­mit­ted Ac­cess. The Cus­tomer shall be solely re­spon­si­ble for the pay­ment of all charges in­curred by Per­mit­ted Users and for the acts and de­faults of all Per­mit­ted Users.

All pass­words must be kept strictly con­fi­den­tial. The Cus­tomer shall be solely re­spon­si­ble for main­tain­ing the con­fi­den­tial­ity of all pass­words is­sued to it and its per­mit­ted Users and shall war­rant that all Per­mit­ted Users to whom pass­words are is­sued shall keep them con­fi­den­tial.

The Cus­tomer shall no­tify ioGates im­me­di­ately if the Cus­tomer be­comes aware of any unau­tho­rised use of any pass­word is­sued to it or any Per­mit­ted User or if the Cus­tomer be­lieves that any such pass­word may have be­come known to an unau­tho­rised third party.

ioGates has no re­spon­si­bil­ity or li­a­bil­ity, for any loss or dam­age caused by the use of any pass­word by any per­son other than the Per­mit­ted User to which it shall have been is­sued. ioGates has the right to – but has no oblig­a­tion to re­quire – that the Cus­tomer con­firms that all Per­mit­ted Users shall con­tinue to have the rel­e­vant Per­mit­ted Ac­cess and may re­quire that pass­words are changed from time to time.

Any change to the Cus­tomer’s or any Per­mit­ted User’s reg­is­tered email ad­dress shall be no­ti­fied im­me­di­ately by the Cus­tomer to ioGates.

The Cus­tomer is re­spon­si­ble for ob­tain­ing the equip­ment and pay­ing all charges nec­es­sary to ac­cess and use the Site and the Ser­vice.

Access And Upload And Maintenance Of Data

The Cus­tomer and, if ap­plic­a­ble, Per­mit­ted Users shall, sub­ject to the Cus­tomer’s pay­ment of all rel­e­vant charges in ac­cor­dance with con­di­tion 4 have the right to:

up­load data to a de­fined Work­space (the Cus­tomer should es­tab­lish a sep­a­rate Work­space for each pro­ject);

up­load data to the Archive utilizing the Archiv­ing Ser­vice;

utilize such other ser­vices and/​or fa­cil­i­ties as shall from time to time com­prise the Ser­vice.

The Cus­tomer is re­spon­si­ble for ob­tain­ing the equip­ment and pay­ing all charges nec­es­sary to ac­cess and use the Site and the Ser­vice.

The up­load of data to the Ser­vice shall re­quire that the data have been en­coded into a sup­ported for­mat. Upon the Cus­tomer’s re­quest ioGates may as­sist the Cus­tomer to en­cod­ing data into a sup­ported for­mat and up­load the en­coded data to the ap­plic­a­ble Work­space or the Archive. ioGates shall only un­der­take en­cod­ing from a copy in a suit­able for­mat of the rel­e­vant data. No orig­i­nal mas­ters of the rel­e­vant data will be en­coded or con­verted.

The Cus­tomer may at any time re­quest:

the pro­cure­ment by ioGates of a copy of any Archived Data to the Cus­tomer, any Part­ner or any third party;

dele­tion of any Archived Data from the Archive; and trans­fer of any Archived Data to the Cus­tomer or any third party.

If the per­son to whom the copy of the ap­plic­a­ble Archived Data is to be pro­vided or the ap­plic­a­ble Archived Data is to be trans­ferred is in­ca­pable of re­ceiv­ing the same by way of Di­rect De­liv­ery, the rel­e­vant Archived Data shall be pro­vided or trans­ferred in such form of phys­i­cal me­dia as the Cus­tomer and ioGates shall agree. ioGates re­serves the right to levy charges for its ser­vices pur­suant to this con­di­tion 3.4. The level of any such charges shall be agreed with the Cus­tomer prior to ioGates’ pro­cure­ment of the ap­plic­a­ble ser­vice. Un­less oth­er­wise agreed in writ­ing, ioGates do not guar­an­tee any per­for­mance or de­liv­ery times in re­spect of the pro­cure­ment of any copies of any Archived Data and/​or its trans­fer.

Charges And Credit Terms

The Ser­vice shall be sub­ject to the Cus­tomer’s pay­ment of the ap­plic­a­ble charges. All charges quoted on the Site are ex­clu­sive of VAT.

The Site will spec­ify the charges payable in re­spect of all charge­able com­po­nents of the Ser­vice from time to time, which charges shall be sub­ject to change from time to time. ioGates may at any time in­tro­duce charges for com­po­nents of the Ser­vice, which may have been pro­vided with­out charge but shall give no­tice on the Site of the in­tro­duc­tion of any such charges.

The Up­load Charge (cal­cu­lated in ac­cor­dance with the pre­vail­ing rates) will be payable in re­spect of the up­load of data to a Work­space and the Archive.

ioGates shall in­voice the Cus­tomer for all charges in­curred by the Cus­tomer and Per­mit­ted Users and ioGates must re­ceive pay­ment within one (1) month of the date of the in­voice fail­ing which any over­due amounts shall be sub­ject to an in­ter­est at a rate of 7% above the of­fi­cial dis­count rate of the Dan­ish Na­tional Bank from time to time, from the due date of pay­ment to the ac­tual date of pay­ment.

In the event the Cus­tomer wishes ioGates to pro­vide any ser­vices not form­ing part of the Ser­vice such as con­ver­sion and en­cod­ing ser­vices, such ser­vices shall be sub­ject to the Cus­tomer and ioGates hav­ing agreed a charge for the pro­cure­ment of the same. The pro­cure­ment of such ser­vices may be sub­ject to these terms and con­di­tions or other terms and con­di­tions.

Charges may be sub­ject to ad­just­ment in the event that:

ad­di­tional costs caused by de­fec­tive ma­te­ri­als sup­plied by the Cus­tomer or a third party, by ma­te­ri­als in an un­suit­able for­mat or a dif­fer­ent for­mat to that which ioGates are ex­pect­ing to re­ceive the same, or by ma­te­ri­als of an un­suit­able qual­ity that are sub­ject to nor­mal pro­cess­ing; or

the in­for­ma­tion sup­plied by the Cus­tomer or a third party in con­nec­tion with the ser­vices is in­ad­e­quate, in­ac­cu­rate or mis­lead­ing; or

the Cus­tomer or any third party changes the re­quire­ments for the ser­vices to be ren­dered; or

ad­di­tional costs are in­curred by ioGates due to ex­cep­tional cir­cum­stances out­side ioGates’ con­trol in­clud­ing cur­rency fluc­tu­a­tions and changes in third party costs.

ioGates re­serves its right to sus­pend and/​or ter­mi­nate the Cus­tomer’s and all Per­mit­ted User’s ac­cess to the Ser­vice pend­ing pay­ment of any sum due from the Cus­tomer un­der any con­tract be­tween the Cus­tomer and ioGates.

ioGates re­serves the right to claim pay­ment in ad­vance of the pro­cure­ment of any ser­vices com­pris­ing the Ser­vice or any other sep­a­rately quoted for ser­vices or goods.

Pay­ment of all charges shall only be made in the cur­rency in which they are in­voiced and shall not be sub­ject to any de­duc­tions what­so­ever.

Change Of Order

ioGates may but shall not be obliged to ac­cept change or can­cel­la­tion of an or­der of any ser­vices re­quested by the Cus­tomer. Any ac­cept shall be in writ­ing. ioGates re­serves the right to charge from the Cus­tomer full com­pen­sa­tion for any loss or cost aris­ing from such can­cel­la­tion or change. In the event the can­cel­la­tion is within 24 hours prior to the date on which ioGates is due to pro­vide the same or com­mence pro­cure­ment of the same, ioGates shall be en­ti­tled to charge for the or­dered ser­vices in full.

The time for per­for­mance or de­liv­ery of the Ser­vice or any ser­vices or goods shall be de­pen­dent upon prompt re­ceipt of all nec­es­sary in­for­ma­tion, in­struc­tions or ap­provals from the Cus­tomer. ioGates shall have no li­a­bil­ity to the Cus­tomer when ioGates has com­plied with in­struc­tions given by the Cus­tomer in the event the Cus­tomer has var­ied the in­struc­tions but failed to com­mu­ni­cate the vari­a­tion to ioGates or with­out suf­fi­cient in­for­ma­tion or too late to en­able ioGates to stop its com­pli­ance with the orig­i­nal in­struc­tions.

The Cus­tomer shall pay all amounts ow­ing to ioGates in full and shall not ex­er­cise any rights of set off or coun­ter­claim against in­voices sub­mit­ted.

Data, Rights And Data Protection

The Cus­tomer shall it­self or shall en­sure that the Cus­tomers’ client shall re­tain a back up copy of all data up­loaded to the Site.

At the Cus­tomer’s re­quest, ioGates shall at agreed in­ter­vals and at an agreed charge sup­ply to the Cus­tomer phys­i­cal me­dia, which re­pro­duces all au­dio vi­sual data up­loaded to the Ser­vice by the Cus­tomer, which has not pre­vi­ously been so sup­plied.

The Cus­tomer ac­knowl­edges that the data up­loaded to the Ser­vice may be ac­cessed by ioGates’ per­son­nel as part of the pro­cure­ment of and main­te­nance of the Ser­vice. Such ac­cess may take place to up­grade the Ser­vice and any hard­ware, to con­duct rou­tine main­te­nance of the Ser­vice and the hard­ware by which it is made avail­able, to re­solve ser­vice in­ter­rup­tions, to re­solve sup­port prob­lems and in con­nec­tion with the man­age­ment of the Archive to re­trieve, copy and trans­fer Archived Data.

The Cus­tomer shall be solely re­spon­si­ble for the con­tent of all data which the Cus­tomer, whether for it­self or a third party, and/​or which a Per­mit­ted User shall up­load to the Ser­vice and/​or which the Cus­tomer shall re­quire ioGates to pro­vide copies of and/​or which shall be trans­ferred to a third party via the Ser­vice. The Cus­tomer war­rants to ioGates that no such data shall con­tain any Bugs (be­ing viruses, worms, logic bombs, time locks, time bombs, Tro­jan horses and bugs), in­fringe any copy­right or other third party rights of any kind, be defam­a­tory or oth­er­wise trans­gress any laws of any coun­try. ioGates re­serves the right to re­move from the Ser­vice any data that it rea­son­ably be­lieves con­tains a com­puter virus of any kind, in­fringes any copy­right or other third party rights of any kind, is defam­a­tory or oth­er­wise trans­gresses any laws of any coun­try.

Term And Termination

This Con­tract en­ters into force upon ioGates’ ac­cep­tance of the Cus­tomers ap­pli­ca­tion, se 2.2, and con­tin­ues un­til ter­mi­nated by ei­ther party with writ­ten no­tice of 30-days to the end of a month.

Ter­mi­na­tion of this Con­tract for any rea­son shall be with­out prej­u­dice to the oblig­a­tion of con­fi­den­tial­ity.

Default

ioGates may, with­out lim­it­ing any of its rights and reme­dies against the Cus­tomer, ter­mi­nate the Cus­tomer’s and all Per­mit­ted Users ac­cess to the Ser­vice and/​or cease the pro­cure­ment of any ser­vices in whole or in part at any time by no­tice in writ­ing to the Cus­tomer in the event that:

the Cus­tomer shall have sub­stan­tially breached of any Con­tract or of any other con­tract be­tween the Cus­tomer and ioGates or the Cus­tomer or any Per­mit­ted User shall have breached Con­tract with ioGates and/​or ioGates’ terms of use of the Ser­vice; or

the Cus­tomer shall have failed to make pay­ment of any sum due to ioGates.

If one or more of the fol­low­ing events oc­cur with re­gard to any of the par­ties to the Con­tract the other party shall, by pre­sent­ing such re­quest in writ­ing, be en­ti­tled to ter­mi­nate the Con­tract in whole or in part with­out no­tice.

The said events are the fol­low­ing:

1. Ap­point­ment of a trustee or a re­ceiver for all or any part of the as­sets of a party.
2. A pe­ti­tion in bank­ruptcy or in­sol­vency against a party.
3. As­sign­ment of a sub­stan­tial part of the as­sets of a party for the ben­e­fit of its cred­i­tors.
4. At­tach­ment of a sub­stan­tial part of the as­sets of a party.
5. Dis­so­lu­tion or liq­ui­da­tion of a party.
6. Sub­stan­tial change in the own­er­ship, man­age­ment or con­trol of a party.
7. Sub­stan­tial de­fault of the oblig­a­tions of these terms and con­di­tions by a party.

In the event of any de­fault or ma­jor breach of these terms and con­di­tions by ei­ther party hereto, the other party shall no­tify the other party hereto im­me­di­ately when the de­fault of breach comes to his knowl­edge, if he wants to ex­er­cise any rights re­lated hereto. If such de­fault or breach is not reme­died with­out de­lay this Con­tract shall be ter­mi­nated with­out no­tice in whole or in part as per re­quest of the non-de­fault­ing party.

Ter­mi­na­tion ow­ing to the Cus­tomer’s de­fault shall be ef­fec­tive to re­lieve ioGates of any oblig­a­tion to com­plete the pro­cure­ment of any ser­vices that re­main out­stand­ing at the date of ter­mi­na­tion.

Ter­mi­na­tion ow­ing to the Cus­tomer’s de­fault shall en­ti­tle ioGates to delete any and all Archived Data which the Cus­tomer shall have placed in the Archive or which ioGates shall have placed in the Archive on be­half of the ap­plic­a­ble Cus­tomer and the dele­tion of all data in each of the Cus­tomer’s Work­spaces. Archived Data and any other ma­te­ri­als be­long­ing to the Cus­tomer or which the Cus­tomer shall have placed in ioGates’ cus­tody shall only be re­turned to the Cus­tomer on dis­charge in full of all sums due to ioGates and on pay­ment of any re­trieval or trans­fer charges that ioGates may ap­ply.

Suspension

ioGates may at any time with­out no­tice to the Cus­tomer and with­out li­a­bil­ity to the Cus­tomer, any Per­mit­ted User or any third party sus­pend any part of the Ser­vice and/​or the avail­abil­ity of the Site and/​or cease to make avail­able any ser­vices in the event that:

ioGates needs to carry out main­te­nance, up­dates and/​or cor­rec­tions to the Ser­vice or the Site;

ioGates is obliged so to do to com­ply with an or­der, in­struc­tion or re­quest of any gov­ern­ment or other com­pe­tent ad­min­is­tra­tive au­thor­ity.

In the event pro­cure­ment of the Ser­vice or the per­for­mance of any oblig­a­tion is pre­vented, de­layed, or in any way in­ter­fered with by an ac­tion or rul­ing of any gov­ern­ment, war, in­dus­trial dis­pute, strike, break­down of ma­chin­ery or equip­ment, ac­ci­dent, fire or by any other cause be­yond ioGates’ con­trol ioGates shall have no li­a­bil­ity to the Cus­tomer or any third party re­sult­ing from such non pro­cure­ment or per­for­mance.

Delays

De­lays by the ioGates

All ad­di­tional di­rect ex­penses rea­son­ably in­curred by the Cus­tomer by rea­son of the Cus­tomer be­ing pre­vented in re­ceiv­ing the Ser­vice or ser­vices from ioGates due to de­lays at­trib­ut­able to ioGates’ gross neg­li­gence shall be re­im­bursed by ioGates to the Cus­tomer.

Un­der no cir­cum­stances shall ioGates be li­able for any con­se­quen­tial loss in­clud­ing dam­ages for loss of prof­its, busi­ness in­ter­rup­tion or other in­di­rect pe­cu­niary loss of any kind.

De­lays by the Cus­tomer

If ioGates is pre­vented or de­layed from per­form­ing the Ser­vice or ser­vices in the man­ner and at the time stated by rea­son of any act or omis­sion of the Cus­tomer or a Per­mit­ted User, the Cus­tomer shall have no right to dam­ages or to can­cel any or­der for any ser­vices for ioGates’ fail­ure to meet any de­liv­ery time stated and the de­liv­ery time shall be amended forth­with, and the Cus­tomer shall pay to ioGates all rea­son­able costs and charges sus­tained or in­curred by ioGates (at ioGates’ then cur­rent rates and all rea­son­able ex­penses) for ad­di­tional time and ma­te­ri­als ex­pended by ioGates as a re­sult of such de­lay.

Force Majeure

Nei­ther party shall be re­spon­si­ble or li­able to the other party here­un­der for fail­ure or de­lay in per­for­mance of this Con­tract, due to any war, fire ac­ci­dent or other ca­su­alty or any labour dis­tur­bance or Act of Good, nat­ural cat­a­stro­phe or Acts of the Pub­lic en­emy or any other con­tin­gency be­yond such par­ties con­trol. In the event of the ap­plic­a­bil­ity of this ar­ti­cle, the party af­fected by such force ma­jeure shall use its best ef­fort to elim­i­nate, cure and over­come of such causes and re­sume per­for­mance of its oblig­a­tions.

ioGates’ Liability

ioGates shall be li­able for dam­ages only to the ex­tent that it is proven that the dam­age is caused by ioGates’ gross neg­li­gence.

ioGates makes no rep­re­sen­ta­tion or war­ranty with re­gard to the Ser­vice or ser­vices and shall not be li­able to The Cus­tomer for any spe­cial or con­se­quen­tial dam­ages, in­clud­ing but not lim­ited to loss of rev­enue and/​or prof­its and ioGates shall not be li­able for any in­jury or dam­age to The Cus­tomer, The Cus­tomer’s prop­er­ties, busi­ness, em­ploy­ees, agents, or The Cus­tomer’s cus­tomers in any way re­lated to or aris­ing out of the Ser­vice or ser­vices or the use or im­ple­men­ta­tion hereof.

Un­less oth­er­wise ex­pressly agreed in writ­ing, ioGates gives no war­ranties, rep­re­sen­ta­tions, con­di­tions, or guar­an­tees of any kind what­so­ever, ei­ther ex­press or im­plied by law (in con­tract or tort or oth­er­wise) or cus­tom, in­clud­ing, but not lim­ited to those re­gard­ing mer­chantabil­ity, fit­ness for pur­pose, cor­re­spon­dence to sam­ple, ti­tle, de­sign, con­di­tion, or qual­ity with­out lim­it­ing the above, ioGates does not war­rant that the pro­cure­ment of ioGates’ Ser­vice or ser­vices shall be free from in­ter­rup­tion or er­rors.

Where ma­te­ri­als are sup­plied or spe­cific in­struc­tions are given by the Cus­tomer (or any Per­mit­ted User, on its be­half) ioGates shall have no li­a­bil­ity caused by de­fects in or the un­suit­abil­ity of such ma­te­ri­als so sup­plied or by ioGates’ ad­her­ence to such spe­cific in­struc­tions.

ioGates shall not be re­spon­si­ble for and shall have no li­a­bil­ity to the Cus­tomer or any third party for:

any loss or dam­age that re­sults from any per­son gain­ing unau­tho­rised ac­cess to the Ser­vice;

use or dis­clo­sure of any data ob­tained by any third party as a re­sult of the same hav­ing gained unau­tho­rised ac­cess to the Ser­vice or hav­ing in­ter­cepted any data as it passes be­tween the Cus­tomer, ioGates or any third party (to in­clude any Part­ner);

any loss or dam­age re­sult­ing from any mal­func­tion of or the in­tro­duc­tion of any Bugs to the Cus­tomer’s equip­ment, soft­ware or links as a re­sult of us­ing the Ser­vice and/​or any Part­ner Ser­vices.

The Cus­tomer ac­knowl­edges that use and avail­abil­ity of the Ser­vice and the trans­fer of data by Di­rect De­liv­ery in­volves re­liance upon third party data car­ri­ers over which ioGates have no con­trol and ac­cord­ingly (notwith­stand­ing and with­out lim­it­ing con­di­tion 10.1) ioGates shall not be re­spon­si­ble for and shall have no li­a­bil­ity to the Cus­tomer or any third party for:

the loss or cor­rup­tion of any data trans­ferred by Di­rect De­liv­ery;

the un­avail­abil­ity of the Ser­vice;

the Cus­tomer’s and any Per­mit­ted User’s in­abil­ity to ac­cess or to use the Ser­vice;

any de­lay in ac­cess­ing any data up­loaded to the Ser­vice and/​or the re­ceipt by the in­tended re­cip­i­ent of any data trans­ferred by Di­rect De­liv­ery.

how­so­ever any of the fore­go­ing shall have been caused.

In the case of the trans­porta­tion of any data in any phys­i­cal me­dia, any pack­ag­ing sup­plied by ioGates will, un­less oth­er­wise ex­pressly agreed, pro­vide ad­e­quate pro­tec­tion un­der nor­mal con­di­tions of de­liv­ery of usual du­ra­tion by courier or, if ap­plic­a­ble, by air trans­port. If the Cus­tomer or the in­tended re­cip­i­ent fail to take de­liv­ery on the agreed de­liv­ery date or, if no spe­cific de­liv­ery date has been agreed, when the phys­i­cal me­dia is ready for despatch, ioGates shall be en­ti­tled to store the phys­i­cal me­dia and to charge the Cus­tomer the rea­son­able costs of so do­ing. Notwith­stand­ing con­di­tion 10.1, ioGates shall be un­der no li­a­bil­ity in re­spect of any loss or dam­age or oth­er­wise aris­ing as a re­sult of dam­age to or the loss or de­struc­tion of such phys­i­cal me­dia.

If for any rea­son, ioGates be­comes li­able to the Cus­tomer or any other party for di­rect or any other dam­ages for any cause what­so­ever, and re­gard­less of the form of ac­tion (in con­tract or tort or oth­er­wise), in­curred in con­nec­tion with this Con­tract then the ag­gre­gate li­a­bil­ity of ioGates for all dam­ages, in­jury, and li­a­bil­ity in­curred by the Cus­tomer and all other par­ties in con­nec­tion with the ioGates Ser­vice or ser­vices, shall be lim­ited to an amount equal to the amount ac­tu­ally paid by the Cus­tomer for the Ser­vice and any other sep­a­rately quoted for ser­vices dur­ing the im­me­di­ately pre­ced­ing 3 months pe­riod.

Un­der no cir­cum­stances shall ioGates be li­able for any con­se­quen­tial loss in­clud­ing dam­ages for loss of prof­its, busi­ness in­ter­rup­tion or other in­di­rect pe­cu­niary loss of any kind.

The Cus­tomer ac­knowl­edges and agrees that the Cus­tomer can­not bring or ini­ti­ate any act or pro­ceed­ing against ioGates aris­ing out of this Con­tract or re­lat­ing to the ioGates Ser­vice or ser­vices more than 6 months af­ter the cause of ac­tion has arisen.

Product Liability

For ma­te­r­ial dam­age or per­sonal in­jury which is due to de­fects from the de­liv­ered Ser­vice or ser­vices or goods (prod­uct li­a­bil­ity) ioGates is only li­able for di­rect loss to the ex­tend that li­a­bil­ity ac­cord­ing to Dan­ish law is levied on a man­u­fac­turer.

ioGates is un­der no cir­cum­stances li­able for dam­age to com­mer­cial prop­erty of the Cus­tomer or third party un­less it is proven that the dam­age is caused by ioGates’ gross neg­li­gence.

ioGates is not li­able for con­se­quen­tial loss, loss of prof­its or other in­di­rect losses.

To the ex­tent ioGates might in­cur prod­ucts li­a­bil­ity in re­la­tion to a third party, the Cus­tomer shall in­dem­nify ioGates to the same ex­tent as ioGates’ li­a­bil­ity is lim­ited in ac­cor­dance with the three pre­ced­ing para­graphs of this con­di­tion.

In the event that any third party makes a claim against ei­ther party con­cern­ing li­a­bil­ity in dam­ages un­der this con­di­tion, such party shall forth­with no­tify the other party hereof.

The Customer’s Liability

The Cus­tomer shall in­dem­nify and hold ioGates harm­less from and against:

all claims or pro­ceed­ings taken against ioGates by any Per­mit­ted User, any third party in­clud­ing any client of the Cus­tomer in re­spect of per­sonal in­jury or dam­age to prop­erty caused by or aris­ing out of any act or omis­sion of ioGates’ in the course of car­ry­ing out the Cus­tomer’s spe­cific in­struc­tions or a Per­mit­ted User on the Cus­tomer’s be­half;

all claims or pro­ceed­ings taken against ioGates aris­ing out of the acts and/​or omis­sions of the Cus­tomer, the Cus­tomer’s agents or sub-con­trac­tors, any Per­mit­ted User, whether neg­li­gent or oth­er­wise;

any loss or dam­age suf­fered by ioGates or a third party caused by the ac­tions or omis­sions of any per­son that gains unau­tho­rised ac­cess to the Ser­vice, any Work­space and/​or any Archived Data us­ing a pass­word is­sued to the Cus­tomer or a Per­mit­ted User;

any loss or dam­age suf­fered by ioGates or any third party caused by any Bugs in­tro­duced to the Site from the com­puter sys­tem of the Cus­tomer or a Per­mit­ted User;

all ac­tions, claims, costs, charges, ex­penses and pro­ceed­ings aris­ing from or in­curred by way of any data up­loaded to the Ser­vice or which the Cus­tomer or a Per­mit­ted User shall re­quire ioGates to pro­vide copies of or which shall be trans­ferred to any third party via the Ser­vice vi­o­lat­ing any copy­right or other third party rights of any kind, be­ing defam­a­tory or oth­er­wise trans­gress­ing any laws of any coun­try or which is caused by or in con­nec­tion with the Cus­tomer’s or any Per­mit­ted User’s use of the Ser­vice or any Part­ner Ser­vice.

Insurance

The Cus­tomer shall at all times main­tain and keep ef­fec­tive in­sur­ance poli­cies with rep­utable in­sur­ers and for ad­e­quate lev­els of cover which pro­tect the Cus­tomer against any loss or li­a­bil­ity which may be in­curred or suf­fered by the Cus­tomer aris­ing out of this Con­tract. Such in­sur­ance shall in­clude in­sur­ance for any dam­age or loss for which ioGates are not li­able pur­suant to the con­di­tions hereof, in­sur­ance which pro­tects the Cus­tomer against any ac­ci­den­tal loss, dam­age or de­struc­tion to any mas­ter tapes, film neg­a­tive prints, sound tapes, video tapes or vi­sual im­ages or sound held in any me­dia whilst in ioGates’ pos­ses­sion or con­trol, up­loaded to the Ser­vice or in tran­sit whether via Di­rect De­liv­ery or in any phys­i­cal me­dia. ioGates shall have no li­a­bil­ity for any li­a­bil­ity or loss which arises from any fail­ure by the Cus­tomer to main­tain and keep ef­fec­tive such in­sur­ances.

Entire Agreement

This Con­tract con­sti­tutes the en­tire agree­ment be­tween the Cus­tomer and ioGates and with­out lim­it­ing any other pro­cure­ment of this Con­tract, all other terms, con­di­tions or war­ranties what­so­ever are, to the max­i­mum ex­tent per­mit­ted by law, ex­cluded and the Cus­tomer con­firms that the Cus­tomer has not re­lied upon any rep­re­sen­ta­tion whether oral or con­tained any lit­er­a­ture in any medium which is not re­peated in this Con­tract.

Confidentiality

The par­ties ac­knowl­edge the im­por­tance of mu­tual con­fi­den­tial­ity with re­gard to all as­pects of the Pro­ject in­clud­ing know how, con­fi­den­tial and/​or trade se­cret in­for­ma­tion.

The par­ties agree that they or their re­spec­tive em­ploy­ees shall not use, di­vulge or dis­close, di­rectly or in­di­rectly to any third party any pro­pri­etary or con­fi­den­tial in­for­ma­tion what­so­ever con­cern­ing the Ser­vice or ser­vices.

The oblig­a­tion of con­fi­den­tial­ity as de­scribed in this ar­ti­cle of this con­di­tion must be main­tained dur­ing the term of this Con­tract as well as af­ter its ter­mi­na­tion for what­ever rea­son it is ter­mi­nated.

Amendments

This Con­tract may not be var­ied or amended un­less such vari­a­tion or amend­ment is agreed in writ­ing by a duly au­tho­rised rep­re­sen­ta­tive of the Cus­tomer and ioGates.

Waiver

No fail­ure, de­lay, re­lax­ation or for­bear­ance on the part of ioGates in ex­er­cis­ing any power or right un­der this Con­tract shall op­er­ate as a waiver or in any way prej­u­dice such power or right un­less agreed in writ­ing by a duly au­tho­rised rep­re­sen­ta­tive of ioGates.

Headings

The sub­ject head­ings of these terms and con­di­tions are in­cluded for pur­poses of con­ve­nience only and shall not af­fect the con­struc­tion or in­ter­pre­ta­tion of any of its con­di­tions.

Use Of Name

ioGates shall have the free of charge right to utilise the Cus­tomer’s name and iden­ti­fy­ing lo­gos in con­nec­tion with pub­li­cis­ing the avail­abil­ity of the Ser­vice un­less the Cus­tomer makes a spe­cific writ­ten re­quest to the con­trary.

The Cus­tomer shall not use ioGates’ name or any trad­ing name or mark with­out ioGates’ prior writ­ten con­sent.

Export

The Cus­tomer ac­knowl­edges and agrees that use of the Ser­vice may be sub­ject to ex­port con­trol or like reg­u­la­tions which the Cus­tomer un­der­takes to ioGates that the Cus­tomer will com­ply with.

Severability

If any con­di­tion as ap­plied to ei­ther party or to any cir­cum­stance shall be ad­judged by a court to be void or un­en­force­able, the same shall in no way af­fect any other pro­cure­ment of this Con­tract or the va­lid­ity or en­force­abil­ity of this Con­tract gen­er­ally.

No Agency

Un­less specif­i­cally pro­vided, no con­tract be­tween the Cus­tomer and ioGates shall op­er­ate to cre­ate an agency, joint ven­ture or part­ner­ship be­tween the Cus­tomer and ioGates.

Subcontractors

ioGates shall be en­ti­tled to ap­point one or more sub-con­trac­tors to carry out all or any of its oblig­a­tions un­der any con­tract be­tween ioGates and the Cus­tomer.

Assignment

The Cus­tomer shall not be en­ti­tled to as­sign or sub-li­cence or oth­er­wise dis­pose of the whole or any part of this Con­tract or its rights here­un­der with­out ioGates’ prior writ­ten con­sent. As­sign­ment of a con­trol­ling part of the Cus­tomer shall for pur­pose of this Con­tract be con­sid­ered as an as­sign­ment.

Applicable Law & Venue

This Con­tract is gov­erned and con­strued in ac­cor­dance with the laws of the King­dom of Den­mark.

The Venue for all dis­putes aris­ing out of or in con­nec­tion with this Con­tract, if not am­i­ca­bly set­tled be­tween the par­ties shall be the venue of ioGates’ domi­cile in Den­mark

Dan­ish shall be the lan­guage dur­ing pro­ceed­ings.

These terms and con­di­tions were last re­vised No­vem­ber 2010