SUBSCRIPTION AGREEMENT

 

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

 

THESE TERMS OF SERVICE CONSTITUTE AN AGREEMENT (THIS “AGREEMENT”) BY AND BETWEEN KONCIV AS (REGISTRATION NUMBER 818 874 812), A COMPANY HAVING ITS REGISTERED OFFICE AT RISAVIKA HAVNERING 14, 4056 TANANGER, NORWAY (“PROVIDER”), AND THE CORPORATION, LLC, PARTNERSHIP, SOLE PROPRIETORSHIP, OR OTHER BUSINESS ENTITY EXECUTING THIS AGREEMENT (“CUSTOMER”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CUSTOMER ACCEPTS THESE TERMS (THE “EFFECTIVE DATE”). CUSTOMER’S USE OF AND PROVIDER’S PROVISION OF PROVIDER’S SYSTEM ARE GOVERNED BY THIS AGREEMENT.

 

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO PERFORM THE OBLIGATIONS UNDER THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

 

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

 

Agreement version

This Agreement was last updated on 30 September 2020. It is effective between You and Us as of the date of You accepting this Agreement.

 

Table of Contents

Definitions

Free Trial

Term

Our Responsibilities

Use of the Services

Non-KONCIV Digital Providers

Fees and Payment

Proprietary Rights and Authorizations

Confidentiality

Warranties, Exclusive Remedies and Disclaimers

Limitation of Liability

Termination of Agreement

Assignment

Force Majeure

Governing Law and Jurisdiction

Ethics and Anti-Corruption

General Provisions

 

1. DEFINITIONS

Except to the extent expressly provided otherwise, in this Agreement:

 

"Account" means an account enabling a person to access and use the Services, including both administrator accounts and user accounts;

 

"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

 

“Agreement” means this agreement including any Order Forms, and any amendments to this Agreement.

"Business Day" means any weekday other than a public holiday in Norway.

 

“Business Hours" means the hours of 08:00 to 16:00 (CET/UTC+01:00) on a Business Day.

“Customer”, “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.

 

"Customer Confidential Information" means any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure 1) was marked or described as "confidential"; or 2) should have been reasonably understood by the Provider to be confidential; and 3) the Customer Data.

 

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Service by the Customer.

 

"Effective Date" means the date of execution of this Agreement.

 

"Force Majeure Event" means an occurrence causing unavailability beyond the reasonable control of the party affected, provided that such party could not reasonably have foreseen such occurrence and could not reasonably have avoided or overcome it or its consequences. This includes failures or delays of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, strike or other labor problem (other than one involving Our employees), changes to the law and act of government, disasters, explosions, earthquakes, fires, floods, riots, terrorist attacks, civil unrest, and wars.

 

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); “Maintenance Services” means the general maintenance of the Platform and Service, and the application of Updates and Upgrades.

 

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder

 

that is entered into between You and Us or any of Your or Our Affiliates, including any addenda and supplements

thereto. By entering into an Order Form hereunder, including an Order Form with any of our Affiliates, You and

 

your Affiliates agree to be bound by the terms of this Agreement as if it were an original party hereto.

“Platform” means the platform managed by the Provider and used by the Provider to provide the Service.

 

“Provider”, “We,” “Us” or “Our” means KONCIV AS.

 

“Services” means the products and services that are ordered by You and provided by Us under an Order Form or provided to You under a free trial, and made available online by Us, namely the KONCIV solution.

 

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Services, but shall not include the provision of training services.

 

"Term" means the term of this Agreement, commencing and ending in accordance with Clause 3.

"Update" means a hotfix, patch or minor version update to any software.

 

"Upgrade" means a major version upgrade of any Platform software.

“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

 

“Your Data” means electronic data and information submitted by or for Customer to the Service.

 

2. FREE TRIAL

When You register on Our website for an account, We will make our Service available to You on a trial basis free of charge until an order form is signed. If an order form is not signed within one month after start of the free trial period, the account may be deleted. Provider is at any time entitled to deactivate or delete accounts which are deemed by Provider to not be registered by legitimate customers, companies or persons, or which contain misleading or wrong information.

 

Any data you enter into the services, and any customizations made to the services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same services as those covered by the trial, purchase applicable upgraded services, or export such data, before the end of the trial period. We will make Your Data available to You for export or download if requested. Any Service provided for making the data available will be charged by our standard applicable rates. This rate is subject to change without further notice and can be requested through admin@konciv.com You cannot transfer data entered or customizations made during the free

 

trial to a service that would be a downgrade from that covered by the trial; therefore, if you purchase a service that would be a downgrade from that covered by the trial your data can be permanently lost.

 

For as long as the Service is made available on a free trial basis, You cannot enter any data into the Service which is subject to any applicable data protection regulation in Your jurisdiction. You agree to indemnify Us from any claims relating to any data you enter into the Service while on a free trial basis, and no data processor agreement will be entered into for free trial access to the Service.

 

3. TERM

3.1. Term of Agreement. This Agreement shall come into force upon the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.

 

3.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 15 days before the end of the relevant subscription term. The pricing during any renewal term will increase by up to 5% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s pricing.

 

4. OUR RESPONSIBILITIES

4.1. Provision of the Service. We will:

 

  1. make the Services available to You on or promptly following the Effective Date and pursuant to this Agreement and the applicable Order Form(s);

 

  1. provide applicable standard support for the Services to You at no additional charge, and/or upgraded support if purchased;

 

  1. provide the Maintenance Services during the Term as described in the Order Form; and

  2. use reasonable endeavors to maintain the availability of the Services to You and use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week.

 

For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement: (i) planned downtime / scheduled maintenance (of which We shall give advance electronic notice), (ii) a fault or failure of the internet or any public telecommunications network, (iii) a fault or failure of the Customer's computer systems or networks, (iv) any breach by the Customer of this Agreement, (v) Non-KONCIV Application and (vi) Force Majeure.

 

4.2. Customer Data and Data Protection. The Customer hereby grants to the Provider access to Customer data to the extent reasonably required for the performance of the Service. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, or (b) as You expressly permit in writing.

 

We are not responsible for the nature of the data You upload into the Service, including if the data is subject to any applicable personal data protection regulations. You are the data controller of any data You upload into the Service, and are therefore fully responsible for ensuring that the safeguards for protection of the data are in line with any applicable law and regulation regarding the data You upload or generate in the Service. Upon request We may agree to enter into a separate data processor agreement detailing data protection requirements, but You agree to indemnify and keep Us harmless from all claims relating to the nature of the Data and safeguard requirements depending on the nature of the data, being it personal data subject to applicable data protection regulations, confidential data or otherwise unlawful data, unless otherwise agreed in such data processor agreement.

 

4.3. Maintenance Services

 

The Provider shall a) where practicable give to the Customer at least 3 Business Days' prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Service or are likely to have a material negative impact upon the Service, without prejudice to the Provider's other notice obligations under this main body of this Agreement; b) give to the Customer at least 3 Business Days' prior written notice of the application of an Upgrade to the Platform; c) The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least 3 Business Days' prior written notice of the application of any non-security Update to the Platform; and d) provide the Maintenance Services with reasonable skill and care. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 15 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

 

4.4. Standard Support Services

The Provider shall a) provide the Support Services to the Customer during the Term; b) make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement; c) provide the Support Services with reasonable skill and care; and d) respond promptly to all requests for Support Services made by the Customer through the helpdesk. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

 

The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services and the Customer must not use the helpdesk for any other purpose.

 

4.5. Our Personnel and Contractors. We shall remain responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein. Notwithstanding any other provision of this Agreement, You acknowledge and agree that We may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

 

5. USE OF THE SERVICES

 

5.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

 

5.2 Usage Limits. Services are subject to the following usage limitations: Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may only be used by that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 7.3 (Invoicing and Payment).

 

5.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, including but not limited to applicable data protection legislation and regulations in your jurisdiction, (c) use reasonable endeavors, including reasonable security measures relating to Account access details, to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and Order Forms and applicable laws and government regulations. 5.4 Usage Restrictions. Except to the extent expressly permitted in this Agreement or required by law the subscription granted under Clause 5.2 is subject to the following prohibitions:

 

  1. You will not permit any unauthorized person to access or use the Service, unless expressly stated otherwise in an Order Form;

 

  1. You will not sell, resell, license, sublicense, distribute, make available, rent or lease any Service; You will not use the Service in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity, for example using the Service to store or transmit any unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;

 

  1. You will not use a Service to store or transmit Malicious Code;

  2. You will not interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;

 

  1. You will not use the Service in any way that causes, or may cause, damage to the Service or Platform or impairment of the availability or accessibility of the Service.

 

  1. You will not attempt to gain unauthorized access to any Service or its related systems or networks;

 

  1. You will not permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, or an Order Form;

 

  1. You will not copy a Service or any part, feature, function or user interface thereof;

  2. You will not copy content of the Services except as permitted herein or in an Order Form;

 

  1. You will not frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes;

 

  1. You will not access any Service in order to build a competitive product or service or to benchmark with a service; or (l) reverse engineer any Service (to the extent such restriction is permitted by law).

 

Any use of the Services in breach of this Agreement or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services and or

termination of this Agreement, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension or termination.

 

6. NON-KONCIV DIGITAL PROVIDERS

6.1. We or third parties may make available third-party products or services, including, for example, Non-KONCIV providers and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-KONCIV provider, product or service is solely between You and the applicable Non-KONCIV provider. We do not warrant or support Non-KONCIV Applications or other Non-KONCIV products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form. You agree to hold us harmless from claims related to loss or damages arising out of Your use of third-party products or services not warranted or supported by Us.

 

6.2. Non-KONCIV Applications and Your Data. If You choose to use a Non-KONCIV Application with a Service, You grant Us permission to allow the Non-KONCIV Application and its provider to access Your Data as required for the interoperation of that Non-KONCIV Application with the Service. We are not responsible for any processing, disclosure, modification or deletion of Your Data resulting from access by such Non-KONCIV Application or its provider, and we are not liable or responsible for provider of Non-KONCIV Application’s compliance with applicable data protection legislation and regulations.

 

6.3. Integration with Non-KONCIV Applications. The Services may contain features designed to interoperate with Non-KONCIV Applications. To use such features, You may be required to obtain access to such Non-KONCIV Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-KONCIV Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-KONCIV Application ceases to make the Non-KONCIV Application available for interoperation with the corresponding Service features in a manner acceptable to Us.

 

7. FEES AND PAYMENT

 

7.1. Fees. You will pay all fees specified in the Order Form(s) in accordance with this Agreement. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. All amounts stated in or in relation to this Agreement are stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider upon invoicing.

 

7.2. Time-based charges. If the charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based charges given to the Customer being exceeded by more than 15 %, or any budget for time-based charges agreed by the parties being exceeded by more than 15%; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any additional charges in respect of Services performed in breach of this Clause 7.2, however the Customer agrees to pay for charges exceeding the estimates by up to 15% .

 

7.3. Invoicing and Payment. You will provide Us with valid invoicing information, or with a valid purchase order or alternative document reasonably acceptable to Us. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

 

7.4. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7.3. (Invoicing and Payment).

 

7.5. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue We may, 1) without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable; and 2) suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior written notice, in accordance with Section 17.2 (Manner of Giving Notice) for billing notices, before suspending services to You. 3) terminate the Agreement immediately in accordance with Section 12.1.

 

7.6. Payment Disputes. We will not exercise Our rights under Section 7.4 (Overdue Charges) or 7.5 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

 

7.7. Taxes. Our stated fees do not include any taxes, levies, duties, fees, stamp fees or similar governmental assessments of any nature, including but not limited to, for example, value-added tax, sales tax, use tax or withholding tax, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder, your responsibility to pay all Taxes applies regardless of whether the responsibility to collect and pay the Taxes applies to You or to Us. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 7.7., We will invoice You, for the tax amount separately or include the tax amount on the invoice, and You will pay that amount unless, You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

 

7.8. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

 

8. PROPRIETARY RIGHTS AND AUTHORIZATIONS

8.1. General. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

 

8.2. Access to and Use of Service. You have the right to access and use the applicable Service subject to the terms of applicable Order Forms and this Agreement. For the avoidance of doubt, You have no right to access the software code of the Platform, either during or after the Term.

 

8.3. License to Host Your Data and Applications. You grant Us and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-KONCIV Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-KONCIV Application or such program code. You agree to hold us harmless for any claims including but not limited to for loss or damages or rights to intellectual property set forth by any third party relating to Your Data, Applications or program code.

8.4. License to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our services.

 

9. CONFIDENTIALITY

 

9.1. Definition: “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party under this Agreement and is not subject to any other obligation of confidentiality, (iii) is received from a third party without breach of any obligation of confidentiality, or (iv) was independently developed by the Receiving Party.

 

9.2. The Receiving Party will keep confidential information strictly confidential and use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than those who have a need to access the Customer Confidential Information for the performance of their work with respect to the permitted purpose and those who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information. A party that makes any such disclosure will remain responsible for such Receiving Party’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-KONCIV Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.

 

10. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

 

10.1. Warranties. We warrant that during an applicable subscription term (a) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement (b) the Platform will incorporate security features reflecting the requirements of good industry practice, (c) We will not materially decrease the overall security of the Services, (d) the Services will perform materially in accordance with any applicable documentation or services specification issued for the Service and its content, and (e) subject to the “Integration with Non-KONCIV Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

 

10.2. Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. The service are provided “as is,” exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.

 

11. LIMITATION OF LIABILITY

11.1. Limitation of Liability. Nothing in this Agreement will:

 

  1. limit any liabilities in any way that is not permitted under applicable law; or

  2. exclude any liabilities that may not be excluded under applicable law.

 

In no event shall the aggregate liability of each party together with all of its affiliates arising out of or related to this agreement exceed the total amount paid by you and your affiliates hereunder for the services giving rise to the liability in the six months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit your and your affiliates’ payment obligations under the “fees and payment” section above.

 

11.2. Exclusion of Consequential and Related Damages. Arising out of or related to this agreement, in no event shall either party or its affiliates, subcontractors or employees be liable to the other party in respect of any direct or indirect losses arising out of a force majeure event; loss of profits or anticipated savings; loss of revenue and income; loss of use or production; loss of business, contracts or opportunities; loss of goodwill; or loss or corruption of any data, database or software. This clause applies whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose.

 

12. TERMINATION OF AGREEMENT

12.1. Termination. Each party shall have the right to terminate this Agreement upon fifteen (15) days written notice to the other party. If one party commits a material breach of this Agreement, the other party may terminate this Agreement immediately by giving written notice of termination to the other party. Upon the occurrence of either of the following the Agreement can be terminated upon fifteen (15) days written notice to the other party:

  1. one party is dissolved;

 

  1. one party ceases to conduct all (or substantially all) of its business;

 

  1. one party is or becomes unable to pay its debts as they fall due;

  2. one party is or becomes insolvent or is declared insolvent; or

 

  1. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors. 12.2. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.1 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

12.3. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download. Any Service provided for making the data available will be charged at the at any time applicable hourly rate. This hourly rate is subject to change in our applicable hourly rates without further notice. The currently applicable rates can be requested at admin@konciv.com. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.

 

12.4. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Authorizations,” “Confidentiality,” “Disclaimers,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Non-KONCIV Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement and shall continue in force indefinitely.

 

13. ASSIGNMENT

 

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

14. FORCE MAJEURE

14.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

 

14.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must: (a) promptly notify the other; and (b) inform the other of the period for which it is estimated that such failure or delay will continue.

 

14.3. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

 

  1. GOVERNING LAW AND JURISDICTION

 

  1. General.

This Agreement shall be governed by and construed in accordance with Norwegian law. The courts of Norway shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement. Stavanger is agreed as legal venue.

 

  1. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

 

  1. ETHICS AND ANTI-CORRUPTION

 

Under this Agreement Customer and Provider shall conduct its business in accordance with the highest ethical standards and it shall comply with applicable law relating to corruption and prohibited gifts and payments in the performance of its obligations and business agreements.

 

17. GENERAL PROVISIONS

17.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

17.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be deemed to be received upon (a) personal or courier delivery, in which case the notice shall be deemed to be received upon delivery (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. If the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.

 

Our contact details for notices are as follows: [contact details]. The addressee and contact details may be updated from time to time by a party giving written notice of the update to the other party.

 

17.3. Acknowledgements. The Customer acknowledges that: (a) complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs; (b) complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Services will be entirely secure; and (c) the Provider is free from responsibility if Customer chooses to use any legal, financial or technical advice under this Agreement or in relation to the Services; and, d) except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

 

17.5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Our Services. The Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement.

 

©2020 by Konciv