1 Introductory provisions 

1.1 For the purposes of this Agreement, the following words and expressions shall have the following meanings unless the context otherwise requires: 

Parties 

The Color Club and the company (Customer) stated in this document and the associated Contract. 

Appointment  

This Agreement on The Color Clubs Terms and Conditions, as well as other agreements, including Contract, entered into between the parties with appendices. 

Agreement period

The period as stated Contract entered into between the parties. 

Traffic 

Internet-based traffic (IP traffic) is delivered via fiber, wireless connections (FWA), copper connections, or other connections.  

Housing facility 

Area for housing IT and telecommunications equipment as specified in the Contract.  

Contract 

Contract signed by the Parties specifying the delivery of The Color Club’s products and services. 

Index adjustment

We reserve the right to index adjustments annually. 

Commissioning day 

The day on which the customer actually uses a service or service, including a housing facility. 

Ready to use 

A message from The Color Club stating that the housing facilities, internet connection, or ordered service can be used by the customer.  

Rent 

A right to use the housing facility, Fiber or Circuit, specified in the Contract, against payment of consideration. Renting housing facilities is not necessarily an exclusive right, as other of The Color Club’s customers may have the right to place equipment in the same housing facility. 

1.2 This Agreement governs the provision of hosting, IT operations, Internet connections, Internet traffic, and related services from The Color Club to the Customer and otherwise the relationship between the Parties. The specific services that the Parties agree that The Color Club will provide are described in the Contracts. Such Contracts shall be covered and governed by this Agreement unless deviations therefrom are specifically stated in the Contract. 

1.3 Annexes attached to this document, the Contract or other agreements between the parties and listed in i.a. the list of annexes to the Contract, form part of the Agreement. 

1.4 In the event of any inconsistency between this Agreement and a Contract, the Contract shall prevail. 

1.5 If The Color Club provides physical internet connections via, but not limited to, fiber, copper, or wireless (FWA) connections, the terms and conditions of the subcontractor in question shall apply to this part of The Color Club’s service. These thus take precedence over this Agreement. 

2 Agreement period 

2.1 The terms of this Agreement and Contracts are non-cancellable by both Parties during the term of the agreement as stipulated in the individual Contracts, according to which it may be terminated by each Party with 90 days written notice until the end of a month. If the agreement is not terminated any later than 30 days before expiration, this Agreement and the Contract will be automatically extended for 1 month on the same terms. 

2.2 In each individual Contract, the Agreement Period for the service in question is determined.  

3 Payment obligations 

3.1 Prices and payment terms for services are set out in the Contracts. All prices are stated in Danish kroner (DKK) excluding VAT and any other taxes and fees. 

3.2 Unless otherwise specifically stated in the individual Contract, ongoing remuneration for services stipulated in Contracts must be paid monthly in advance of the conclusion of the agreement or from the time the service is declared “Ready for Use” by The Color Club, whichever occurs first.  

3.3 Any invoice submitted by The Color Club must be paid no later than 14 days after the issue.  

3.4 All payments under the Agreement shall be made without deduction or set-off of any kind unless otherwise agreed between the Parties and specified in the Contract in question. 

3.5 If the Customer does not make a timely payment, the Customer must pay interest on the outstanding amount for the elapsed time. The interest must accrue and be calculated daily with a variable interest rate of five (5) percent per annum over the Discount in force at any given time and must be calculated for the elapsed number of days based on a year consisting of 365 days from the due date until the actual payment date. In addition, the customer pays any costs of recovery of non-payment and any losses The Color Club may incur as a result of non-payment or late payment. 

3.6 All current remuneration for services provided by The Color Club Index is adjusted once a year. 

3.7 All prices and fees can, in addition to price indexation, be adjusted with one month’s notice. The Color Club must inform the Customer about these regulations with a minimum of one month’s notice before the change takes effect. The customer is obliged to pay the regulated price, but may in this case choose to terminate the agreement in writing with one month’s notice to The Color Club. However, price increases may occur without notice if these occur as a result of regulatory or legal matters as well as increases originating from The Color Club’s subcontractors. 

4 Delivery 

4.1 The Color Club undertakes to provide the services defined in the Contract at the time stipulated in the Contract.  

4.2 The time for the delivery of the individual services is determined in the Contract. 

4.3 When the services are ready for Use, The Color Club must immediately notify the Customer by sending a letter or e-mail confirming that the services satisfy the agreed specifications. The customer must notify The Color Club in writing within 5 working days of receiving this information if the services do not meet the agreed specifications. If the services do not meet the specifications, the Customer must specify such conditions in writing to The Color Club. If the Customer has not given notice in accordance with the above within 5 working days after The Color Club has informed that the services are Ready for Use, the services are considered to meet the specifications and all guarantees. 

4.4 If the Customer finds that the services do not meet the specifications, the Parties shall cooperate in order to identify and correct any deficiencies. Should a dispute arise between the Parties, this must be resolved amicably. If the Parties are not able to resolve the dispute within 15 working days from the day on which the Customer notifies of any defects, the case must be handed over to an independent industry expert, whose decision must be final and binding. The independent expert shall be appointed by agreement between the Parties.  

5 Additional obligations of the parties 

5.1 Each Party shall provide all necessary and appropriate permits and approvals and otherwise comply with all laws, regulations, and requirements of any relevant public authority applicable to the installation, use, and ownership of the services provided by that Party.  

6 Transfer  

6.1 The customer is not entitled to transfer rights and obligations to third parties, unless the acquiring third party enters into all rights and obligations, and only if The Color Club approves the transfer in writing. The Parties are at all times entitled to transfer their rights and obligations under this Agreement to an affiliated company, provided that the transferring company is at least 50% owner and continues to guarantee the fulfillment of all rights and obligations unless the Parties wrote agreements otherwise. 

6.2 The parties have the right to transfer payments in accordance with this Agreement to their respective bank connections without the bank connection entering into the Agreement. This does not require the written consent of the other Party. 

7 Breach

7.1 Each Party may terminate the Agreement and any Contract in writing immediately to the other Party, in the event of the Party’s material breach of the Agreement or a Contract, or if the Party is declared bankrupt or enters into suspension of payments. 

7.2 In the event of one of the Parties’ defaults pursuant to section 7.1, the defaulting Party shall, upon written demand, have 30 days to terminate/establish the default. However, this does not apply to payment obligations or matters of such a nature that they cannot be terminated or created. 

7.3 The Color Club may terminate the Agreement and Contracts in writing to the Customer if the latter has failed to pay the submitted invoice and has not within 10 days after sending the written reminder from The Color Club has paid the amount due including accrued interest, etc. (cf. section 3.5) 

7.4 Termination of the Agreement – for any reason – shall not affect the provisions of the Agreement which shall continue to apply or enter into force in the event of termination and shall not affect the Customer’s payment obligations of any amount to The Color Club under the Agreement or Contracts.  

8 Responsibility 

8.1 After delivery, “Ready for Use” is announced, The Color Club’s obligations must be limited to The Color Club’s maintenance obligation and any services defined in the Contract. The Color Club is not responsible for the deterioration or damage to services described in this Agreement or for any malfunction/malfunction of these services, or any unavailability, delay, discontinuation or interruption due to the Customer’s actions.

8.2 Unless otherwise expressly stated in this Agreement, it applies that:  

• Each Party issues only the guarantees that are explicitly mentioned in this Agreement and thus does not provide guarantees as may result from custom, etc. 
• Neither Party shall be liable to the other Party or anyone else, including its parent/subsidiaries, dealers, customers, or other end users for indirect losses.  

8.3 The Customer agrees that the Customer must comply with all applicable laws and regulations in connection with the Customer’s Business. The Customer understands that The Color Club does not exercise any control at all over the content of the Information that the Customer sends from The Color Club’s data center, and that it is the Customer’s sole responsibility to ensure that the information that the Customer sends and receives complies with all applicable laws and rules. The customer confirms that he has read and accepted section 11 “Acceptable Use Policy”. 

8.4 The Color Club is not responsible for damage to or insurance of the Customer’s equipment unless insurance of the Customer’s Equipment is specifically included as a service in the Contract. 

8.5 The Color Club’s maximum compensation to the Customer may not exceed an amount corresponding to what the Customer has paid The Color Club in the last 6 months from the claim being made.  

9 Confidentiality 

9.1 The parties undertake to: 

• Treat all information given and / or received about each other’s matters in strict confidence. 

• Not to pass on such confidential information to third parties without the prior written permission of the Party and only to use confidential information for the purpose described in this Agreement. However, conditions mentioned in section 9.3 are excluded. 

9.2 Confidential information is any information about the other Party’s business or business relationship that a Party has received directly or indirectly, whether orally or in writing, in connection with the performance of the tasks. Excluded from this, however, is information that is or will be publicly available in other ways than by one of the Parties’ default. 

9.3 The parties are entitled to pass on information to the authorities in fulfillment of legal obligations. When providing information, the Party providing such information is obliged to maintain confidentiality to the greatest extent possible.  

9.4 This confidentiality obligation applies to both Parties also after the termination of the mutual contractual relationship. 

10 Guarantees 

10.1 The customer’s guarantees 

The customer is familiar with the laws and regulations that apply to the Customer’s Business. The Customer documents and guarantees that as long as this Agreement is valid, the Customer’s Business will not contain or transmit material that is contrary to applicable law. If the Customer violates the law and/or does not comply  

The Color Club’s User Policy pursuant to section 11, The Color Club will, in The Color Club’s sole discretion, in any way prevent access to such illegal materials and/or cease providing services to the Customer, including suspending or interrupting deliveries to the Customer with immediate notice. 

10.2 The Color Clubs Warranties 

(a) The Color Clubs Service Level Agreement (SLA) is applicable if stated in the Customer’s contract.  

(b) No other warranty. Apart from the warranties in sub-paragraph (a) above, The Color Club makes available all other services, products and areas as they are and exist. The Color Club makes no express or implied warranties and The Color Club disclaims all liability with respect to the conduct, satisfactory quality, non-infringement and suitability for a particular purpose as well as warranties arising out of commercial practice, custom or commercial practice. 

(c) No warranty for services controlled by third parties. Although The Color Club provides connection to the Internet to the Customer, The Color Club cannot control the flow of information to and from The Color Club data centers to other parts of the Internet. Such flows largely depend on the performance of Internet Services provided or controlled by third parties. These third parties may cause The Color Club’s Customer’s connections to be disconnected or weakened, but The Color Club cannot guarantee that such cases will not occur and The Color Club disclaims any responsibility in connection with such coincidence.  

11 Acceptable Use Policy

All The Color Club customers are responsible for reading and understanding this Acceptable Use Policy.  

The actions described below are defined by The Color Club as “system abuse” and are not permitted. The examples described below are not exhaustive and are included only to guide and inform The Color Club’s customers. If the Customer is unsure whether an action or use of the system is permitted, it is the Customer’s responsibility to contact The Color Club. The following activities are absolutely not permitted and The Color Club has the right to take the necessary steps to stop these activities including the suspension and termination of the services provided to the Customer. See also section 10.1 above. 

In general, Customer may not use The Color Club’s network, servers or services to: 

– violate applicable laws, rules and guidelines 

– violate “acceptable use policies” of the networks, machines or servers reached by using The Color Club’s network  

– violate the privacy of others  

– violate the guidelines for sending marketing material via email  

Unauthorized activities also include, but are not limited to:   

– unauthorized use (or attempted unauthorized use) of machines and networks  

– attempts to compromise sites and servers (eg denial of service attacks) 

– falsifying header information or user identification 

– distributing malicious programs to networks or machines (f. eg viruses, worms, Trojan horses, etc.) 

– monitor or scan other networks without permission  

– destroy security or disrupt Internet communication including providing (access to) data that Customer should not have access to or log on to a server to which Customer should not have access to  

– perform any kind of network monitoring (eg packet sniffer) in order to obtain data that is not intended for the Customer 

– try to circumvent user authentication or security of any host or network (“cracking ”)  

– use any program / script / command or send messages of any kind designed to destroy or disrupt machines, servers and networks – both locally or via I the Internet  

– send unsolicited bulk email (“SPAM”)  

– maintain and operate an open mail relay 

– collect email addresses from the Internet for the purpose of sending unsolicited bulk email (“SPAM”) 

– send or receive copyright infringing or illegal material  

– store illegal material on servers, machines, equipment, etc., which are located on or connected to The Color Club’s network 

– disclose false or incorrect data on signup forms  

– try to disrupt or destroy the way The Color Club measures bandwidth consumption , power and other services.   

12 Force Majeure 

12.1 Neither Party is obliged to provide compensation in the event of non-performance of the contract, caused by circumstances beyond the control of the Parties, including – and to the extent that such service is prevented (directly or indirectly) as a result of – strike, lock- out, strike, government intervention, lack of or delayed regulatory approval, rebellion, armed conflict, accident, lack of raw materials or normal means of transportation, acts of war, terrorism, natural disasters or any other cause beyond what the Parties can reasonably be expected to control. 

13 Choice of law, venue, interpretation and dispute  

13.1 This Agreement is subject to and must be construed in accordance with Danish law.  

13.2 The Parties undertake to try, through negotiation, to find an amicable solution to disputes and to do so in such a way that normal services or normal production are not affected. In the absence of an amicable settlement after negotiation, the case must be decided definitively and bindingly by arbitration in accordance with the rules of the Danish Arbitration Institute or in the Danish courts of The Color Club’s choice. 

14 Different conditions 

14.1 In connection with marketing, the Customer agrees that The Color Club may use the Customer’s name and logo and non-confidential marketing material and visuals as well as briefly describe the Customer’s business to other customers and in The Color Club’s marketing materials – including on The Color Club’s website.  

 

14.2 The Color Club and the Customer are independent companies and this Agreement will not establish a partnership, joint venture, employment, franchise or agency agreement or the like between The Color Club and the Customer. 

14.3 The Customer agrees that only the right to use the Customer’s area (rack, footprint, etc.) has been granted and that the Customer does not acquire any ownership or other rights in connection with the services provided by The Color Club.