Terms

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TERMS OF SERVICE (“TERMS”)

APPLICABLE FOR THE PURCHASE AND USE OF CILLCO PRODUCTS AND SERVICES

1 General

1.1 This Agreement sets out the terms and conditions for the supply by Cillco, and use by Customer, of the following Cillco products as well as any additional Cillco products, services and modules subsequently ordered by Customer from time to time (the “Products”):

1.2 These Terms, including its appendices (each an “Appendix”) which shall form integral parts of the Terms, constitute the entire agreement between the Parties with respect to access to and use of the Products. The Agreement consists of the following documents:

Appendix 1: Quotation/Sales Contract signed by both Cillco and Customer
Appendix 2: Service Level Agreement (SLA)
Appendix 3: Data Processing Agreement

Unless explicitly set out herein, the terms of the Terms shall take precedence in the event of any inconsistencies or conflict with the Appendices.

With effect from the date that the Customer first access or use the Products (the “Effective Date”) the Customer, and any user to which access rights has been granted by the Customer, agrees to be bound by these Terms. The representative(s) of the Customer confirms to have all rights to perform all actions on behalf of the Customer under these Terms. For any end-users that have been added or invited to the Products by the Customer, the party that administers the Products on behalf of the Customer controls all use of the Products, including but not limited to adding or removing end-users from that Product, enabling or disabling third-party integrations, and managing permissions etc.

1.3 Provided that Customer pays the agreed fees and subject to Customer’s compliance with the terms and conditions set out in the Terms, the Customer is granted a non-exclusive, non-transferable and non-sublicensable license to use the Products according to the Terms.

1.4 Cillco is responsible for establishing the required user access to the Products for the designated number of users with administration privileges. It is the responsibility of the designated administrator(s) to establish access to the Products based on the configuration tools provided through the Products.

1.5 As long as the Customer holds a valid license to use the Products in accordance with the foregoing, the Customer is also granted access to updates of the Products in accordance with Cillco’s release plan determined in the sole discretion of Cillco and subject to these Terms. The Customer may at any time purchase access to additional or new products, services or modules at applicable commercial terms.

1.6 The Customer shall not be entitled to let third parties use the Products, except in the event of changes to the Customer’s organizational structure through corporate restructuring and merger, provided that such changes do not result in an increased number of user or exceeding other user/volumetric restrictions, in which case additional costs/fees might apply, ref Appendix 1.

1.7 Purchase of the licenses for the Products may include certain configuration- and/or implementation services to be provided by Cillco as further specified in Appendix 1.

2 Prices and Payments

2.1 Customer shall pay to Cillco the applicable license fees set out in Appendix 1 for the Products.

2.2 The Customer may purchase additional services from Cillco pursuant to separate agreements on commercial terms. This could include support and consulting services, user training services etc. The Customer can also set forth requests for development of special functionality and system integration services, which will be assessed by Cillco and that, in the sole discretion of Cillco, could be implemented on commercial terms to be agreed with the Customer.

2.3 Cillco will invoice the Customer any license fees within 10 days after the Effective Date, and within 10 days of each subsequent renewal of the Agreement. Additional services are invoiced monthly in arrears. Additional payment terms set out in Appendix 1 shall apply.

2.4 All invoices shall be paid within 30 days after the invoice date. Cillco will issue electronic invoices (such as EHF or eInvoice). The Customer shall duly inspect all invoices. Failure to notify Cillco in writing without undue delay of any invoice errors may lead to Customer’s potential claims for rectification of the invoice becoming null and void. Failure to make payments in due time shall provide Cillco to suspend the Customer’s access to the Products until full payment has been made.

NO-customers: Late payment shall incur interest under applicable legislation as set out in the Late Payment Interest Act (no: Forsinkelses-renteloven, LOV-2013-02-15-8) as applicable at the date of default.

2.6 EU- customers: Late payment shall incur interest at the rate applied by the main refinancing rate of the European Central Bank (‘the ECP reference rate’), plus 8 percentage points. Cillco shall have the right to regulate its prices on an annual basis with an amount that shall not exceed the increase in the consumer price index (“Konsumprisindeksen”) of Statistics Norway.

Any extraordinary changes to the market or regulatory legislative terms shall also give Cillco the right to perform necessary regulations of its prices and sales terms with 30 days written notice.

Cillco shall have the right to regulate prices for products or services not included in the Terms at any time and without any restrictions.

3 Beta releases, trial versions etc.

3.1 Cillco may offer beta releases, trial versions of certain products or services from time to time. Certain restrictions and limitations may apply as to the functionality and scope of such free products or services.

3.2 Free products and services are provided without any warranties and are explicitly not subject to the SLA or other similar obligations. Cillco retains the right to, under its sole and absolute discretion, to cancel, retract and suspend the provision of any free products or services at any time, without prior notice or reason, and to make further use of such products or services by Customer subject to payment.

4 Provision of the Products

4.1 Cillco shall provide the Products in accordance with the specifications set out in Appendix 1.

4.2 Notwithstanding the above, Cillco retains the right to update, improve and maintain all of its products and services, including but not limited to, updating or removing existing functionality, in which case the corresponding Appendices shall be deemed to be amended correspondingly.

Cillco may only remove functionality or solutions which are in use by the Customer if it can offer the Customer substitutable functionality or solutions unless the removal is necessary to maintain the security and integrity of Cillco’s systems. Cillco shall publish, update and change relevant information pertaining to any such changes through Cillco website, customer portal or similar channels.

4.3 Cillco retains the right to use sub-contractors for the performance of its obligations set out herein. Cillco shall ensure that any sub-contractors used are made subject to the same confidentiality- and personal data protection obligations as set out in these Terms. Cillco assumes all responsibility and liability for any negligent acts or omissions carried out by its sub-contractors as if they were carried out by Cillco, subject to these Terms including its limitations of liability.

4.4 Integration against Customer’s systems or third-party systems shall be subject to separate agreement between the Parties, unless integrations are specified as part of the Product, ref Appendix 1.

4.5 The Customer shall ensure that all use of the Products is secure, including, but not limited to, ensuring that all login credentials are kept safe and confidential, as well as using long and secure passwords to prevent unauthorized third parties from gaining access. Cillco shall not be responsible or liable for any damages resulting from unauthorized use of the Products.

5 Restrictions on Use of the Products

5.1 The Customer’s license to use the Products is strictly limited to the right to use the Products in accordance with the terms of the Terms, in accordance with applicable law and in accordance with the stated purpose of the Products.

5.2 The Customer shall not use the Products to, or attempt to, violate or circumvent the security of any computer network, password, software, encryption measures or other protection measures.

5.3 The Customer shall not use the Products to engage or enable others to engage in any kind of illegal or unethical activity. Cillco retains the right to, in its full discretion, suspend or otherwise disable the Products or the Customer’s access to the Products in such events. The Customer shall not decompile, reverse engineer or attempt to derive any source code of any software or component of the Products.

5.4 Cillco reserves the right to, in its full discretion, suspend or otherwise disable the Products or the Customer’s access to the Products if Cillco deems it necessary for security or technical reasons, such as, but not limited to, events of unauthorized third-party access, security attacks and breaches, distributed denial-of-service attacks or other events that may possible harm Cillco, the Products, the Customer or Cillco’s other customers.

5.5 The Customer shall ensure that any Customer data uploaded through or used with the Products are virus-free, and not in any other way capable of damaging or negatively affecting the Products or Cillco’s systems.

5.6 The Customer remains solely responsible for any data uploaded through or used with the Products by it or any end-user whom the Customer has granted access. This also includes, but is not limited to, a responsibility to ensure compliance with all applicable criminal legislation, privacy legislation as well as any third-party intellectual property rights.

The Customer shall be responsible for taking all immediate steps and actions necessary to remedy the situation if the Customer is made aware of a breach of the foregoing, and to immediately notify Cillco in writing. Cillco reserves the right to immediately remove any data constituting a breach of the aforementioned.

5.7 Cillco retains the right to implement an Acceptable Use Policy for the Products which may enter into effect upon notice to the Customer, and with which the Customer shall comply.

6 Support and maintenance

6.1 Terms and conditions for support, maintenance and service levels are governed by Appendix 2.

6.2 Support, maintenance, or error corrections in Cillco’s solutions resulting from errors in the Customer’s systems or wrongful use of the Products shall be carried out at Customer’s cost at the applicable fee rates set out in Appendix 1.

7 Term and Termination

7.1 For any recurring fees (Subscription), the initial Subscription term will be specified in Appendix 1, and, unless otherwise specified in Appendix 1, Subscription will automatically renew for the shorter of the Subscription term, or one year. In order to terminate an active Subscription, Customer must issue a written notice in accordance with the following terms:

For a Subscription with 1 year or longer renewal interval, termination notice must be issued no later than 60 days prior to the next renewal
For a Subscription with less than 1 year renewal interval, termination notice must be issued no later than 30 days prior to the next renewal. Termination will come into effect from the last day of the month following the notice.

7.2 The Agreement shall come into effect on the Effective Date and shall remain in force until terminated by either Party pursuant to this Section 10.

7.3 In the event of a material breach of the Terms by either Party, the other Party may immediately terminate the Agreement in writing.

7.4 Upon termination of the Agreement by either Party and for whichever reason, the rights granted to Customer pursuant to Section 3 is terminated and the Customer shall cease to use the Products. Upon termination for whichever reason, all application data of the Customer shall be delivered to the Customer in the format in which it has been stored or hosted by Cillco it. Upon delivery of the data, the material shall be permanently deleted and the access rights to the Products will be terminated accordingly.

7.5 Notwithstanding the foregoing, Cillco will, upon request by the Customer, be available for providing migration/transition services on terms to be separately agreed.

7.6 The Customer shall pay any outstanding fees to Cillco upon termination of the Terms.

8 Intellectual Property Rights

8.1 Cillco retains all ownership and intellectual property rights in and to its Products and all proprietary Cillco materials, solutions, products and services, including but not limited to its trademarks, designs and visual presentations, “look and feel”, as well as software and components included in its Products and related documentation. This also includes any and all any improvements and modifications to the Products, including improvements and modifications resulting from Customer’s feedback.

8.2 The Customer retains all ownership and rights to all data and materials uploaded in or through the Products by the Customer, such as Customer’s user-generated data, documentation, and other Customer specific files and information.

8.3 The Customer is granted a non-exclusive, non-sublicensable and non-transferable right to change, copy and distribute Cillco’s user manuals and presentations for internal purposes only, either in print or digitally. Such materials, as well as the Terms and its appendices, shall unless already made publicly available by Cillco not be distributed or disclosed to any third party without the prior written consent of Cillco.

8.4 The Customer shall not challenge the validity of, nor shall it attempt to register or otherwise approach, Cillco’s intellectual property rights. The foregoing shall also apply to registration of confusingly similar brands, names or trademarks.

8.5 If the Customer becomes aware of any sort of misuse, potential misuse or infringement of Cillco’s intellectual property rights by a third party, the Customer shall notify Cillco without undue delay.

9 Confidentiality

9.1 The Parties are obliged to treat as conﬁdential all information, know-how, other conﬁdential material and any other information or material which is of such a nature that it should be considered conﬁdential and which is disclosed to the other Party through business activities regulated by the Terms. This Agreement and its contents shall also be kept confidential.

9.2 This obligation of confidentiality does not preclude information being used when such information can be proven to be generally known or available elsewhere (except if due to improper conduct by either of the Parties or third parties).

9.3 This obligation of confidentiality does not apply when disclosure of information is required by law or a decision of a competent court. The Customer shall notify Cillco immediately upon receiving such a request for disclosure and shall allow Cillco to express its opinion with respect to the disclosure. The Customer shall use all efforts to limit such disclosure to the maximum extent allowed by applicable legislation.

9.4 Cillco processes and stores information entered into by the Customer or its users in or through the Products, as well as any additional information provided as a result of the use of the Products. Cillco also processes and stores users’ IP-addresses and time of login, order information as well as other use-related information. Such information shall be kept confidential, but Cillco is hereby granted the right to anonymize and aggregate such information, and to thereafter use such information for any purpose, whether commercial or not.

9.5 Except if explicitly prohibited by Customer, then Cillco may use Customer’s name and ordinary trademark for marketing purposes on its digital platforms or other reference lists, provided that Cillco does not make any statements that are derogatory or harmful to Customer’s goodwill or reputation.

9.6 The obligations of confidentiality set out herein shall survive any termination of the Terms.

10 Warranties

10.1 The warranties set out in this Section 13 shall apply unless anything to the contrary is set out in Appendix 1.

10.2 Cillco warrants and represents that the Products will be provided consistent with the technical and functional specifications in effect at any time for each Product. The warranties above are limited to software flaws or errors, i.e. where the Products fail to perform in accordance with the specifications provided by Cillco and where such failure is not the result of incorrect use on part of the Customer or its users. Improvement areas and requests for changes or amendments of functionality in the Products shall not constitute a flaw or error for which Cillco is responsible.

10.3 As the sole remedy in the event of a software flaw or error, Cillco will, upon having received a notification of non-conformity from the Customer, use reasonable efforts to remedy the defect(s) to ensure the uninterrupted operations of the Products within the terms set out in the SLA, ref Appendix 2.

10.4 Notwithstanding the foregoing, Cillco cannot guarantee that the Products will be performed error-free or uninterrupted or that Cillco will be able to remedy errors or defects that occur in the Products. The Customer accepts and acknowledge that Cillco does not control transfer of data over communication facilities and that the provision of the Products may be subject to limitations, delays and other problems inherent to the use of such communication facilities. Further, in the event of unforeseen storage and access volumes and other extraordinary circumstances, the Products may be temporarily inaccessible or interrupted.

10.5 Except to the extent expressly stated herein, the Products are provided “AS-IS” and without any representations or warranties of any kind, whether express, implied, statutory or otherwise, regarding the Products or otherwise regarding any other product or service regarding merchantability, quality or fitness for a particular purpose, accuracy, non-infringement and system integration. Cillco does not guarantee that the products work free of errors or uninterrupted, or that functionality of any Cillco product or service will work in combination with other products or services than explicitly specified in Appendix 1.

11 Liability and Indemnity

11.1 Customer shall indemnify Cillco, any company in the Cillco group of companies, their sub-contractors and partners, as well as any other customer of the aforementioned, against any and all claims, damages and liabilities incurred or suffered by Cillco or any of the aforementioned as a result of Customer’s breach of the Terms or as a result of Customer’s infringement of third-party rights.

11.2 Each Party’s maximum liability for direct damages arising out of or in connection with the Terms during the term of the Terms, whether in contract, tort (including negligence), statutory or otherwise, shall be expressly limited to the average 12 months fees paid by the Customer to Cillco under these Terms, however not exceeding NOK 50 000 in each instance.

11.3 Unless otherwise is expressly set out in the Terms, no Party shall be liable for any lost revenues or profits, loss of business, loss or inaccuracy of data or other special, indirect, incidental, exemplary, consequential or punitive damages.

11.4 The limitations of liability set out herein shall not apply to claims, damages or losses caused by intent or gross negligence or culpable damages to life, body and health regardless of their legal nature.

12 Force Majeure

12.1 In the event either Party is unable to perform its obligations under the terms of the Terms because of strikes, equipment or transmission failure or damage, or other extraordinary circumstances reasonably beyond its control, or other causes reasonably beyond its control and which is deemed a force majeure event pursuant to Norwegian law, such Party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes. Difficulty in making payments shall not under no circumstance constitute a force majeure event.

12.2 The affected Party shall use its reasonable commercial efforts to avoid or remove the cause of non-performance and both Parties shall proceed to perform with dispatch once the causes are removed or cease. Notwithstanding anything herein to the contrary, if any delay or non-performance described herein exceeds thirty (30) days, the Party owed such performance, will have the right (but not the obligation) to terminate the Terms without penalty or liability other than for amounts owed as of the date of termination. Such termination must be made in writing.

13 Compliance

13.1 Each Party warrants and represents that it (i) complies with all applicable mandatory laws and regulations; (ii) has obtained all public permits, licenses and authorizations necessary to conduct their business in a lawful manner (iii) has the right, capacity and authority to enter into the Terms; and (iv) that the Terms does not conflict with any other agreements or obligations which it is part of.

13.2 Both Parties shall comply with all applicable data protection regulations regarding storage, use, transfer and processing of any data or personal data. In particular, both Parties hereby agree to comply with the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679). The roles and responsibilities of the Parties with respect to processing of personal data is otherwise governed exclusively under the terms of the Data Processing Agreement entered into between the Parties and included as Appendix 3.

14 Assignment

14.1 The Customer shall not assign or transfer the Terms, in whole or in part, without Cillco’s prior written consent.

14.2 Cillco may assign or transfer the Terms, in whole or in part, to any third party without the Customer’s consent, but shall inform the Customer of such transfer 14 days prior to it taking effect. The Customer shall be entitled to terminate the Agreement within the 14-day period, with effect from the end of the following month, if the Customer is adversely affected by the transfer.

14.3 The Customer accepts and acknowledges that if the Customer has licensed the Products through a Cillco-partner or another intermediary, the license agreement can be assigned to Cillco, or another distributor or partner as appointed by Cillco, in the event of termination of the partnership or agreement with said intermediary.

15 Changes

15.1 The Customer agrees and acknowledges that Cillco may have reasonable need to amend and change the terms of the Terms due to changes in the regulatory or commercial environment of which Cillco operates, new functionality or new products and services, and to avoid misuse of existing products and to ensure stable operations for all of Cillco’s customers.

15.2 Cillco shall notify the Customer of such changes within 30 days before they are implemented. Upon subsequent access to or use of Cillco’s products, the Customer shall be considered to have accepted the amended terms.

15.3 Cillco shall reasonably endeavour to avoid implementing terms which conflicts with the Terms as it exists on the Effective Date. If the changes are not acceptable for the Customer, the Customer may terminate the Agreement in writing to Cillco. The Agreement shall be considered terminated as of the date that the changes take effect.

16 Governing Law and Jurisdiction

16.1 This Agreement shall be governed by and interpreted in accordance with the laws of Norway.

16.2 Any dispute, controversy or claim arising out of or in connection with the Terms, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce in force at any time. The appointed arbitrary tribunal shall be the Oslo Chamber of Commerce, and the dispute shall be solved by a single arbitrator jointly nominated by the Parties. If the Parties cannot agree upon the appointed arbitrator, each Party shall select a representative, whereupon the Parties’ representatives shall agree upon the appointed arbitrator. The arbitration process and final decision of the arbitrator shall be kept confidential.

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