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Telemagic Group AS

GENERAL TERMS AND CONDITIONS FOR SERVICE PROVISIONING

 

Date: 10.06.2021

 

Introduction

These GENERAL TERMS and CONDITIONS (hereinafter “Terms”) applies to all agreements giving access to Telemagic Group AS’s cloud-based call center and communications platforms and services, and all related technologies and/or products (hereinafter “Services” – further explained in paragraph 1 below) irrespective of the agreement being entered into directly with Telemagic Group AS, or through a third party, for the use of Telemagic Group AS’s Services by the Customer.

These Terms shall be considered accepted by the Customer and become valid upon signing of an agreement (hereinafter “Agreement”) by the Customer with Telemagic Group AS. These Terms is an integral part of the Agreement with Telemagic Group AS. Word usage with capitalized lettering in these Terms, shall have the meaning as laid out in the Agreement. In cases of  conflict between these Terms, the Agreement, and alternatively other arrangements or appendices to the Agreement between the Parties hereto, these Terms shall take precedence.

1.    Definitions and roles

The following definitions and roles are in use, and shall have the specified meaning, in addition to what might be highlighted throughout the general text:

“Service Provider” is Telemagic Group AS (or “TMG”) as provider of the Services.
“Customer” is the entity that has entered into an agreement to use the Service.
“Part“/”Parties” is the Customer and/or Service Provider.
“Users” are the employees or agents that is affiliated with the Customer that through agreement has the right to use the Service.
“Service” is the Service provided by TMG’s Call Center solution for incoming and outgoing telephony, as well as other channels, including but not limited to, email and SMS. This Term also refers to any add-on service elements and components for the system to function as expected.
“Customer Data” is all the specific information related to the Customer and that is being processed by the Service, stored by the Service, generated by the Service, or sent to the Service. Customer Data may include Personal Data.

“Personal Data” is all information that can be tied to an identifiable physical person.

 

2.    Service

2.1  Standard Service

The Service Provider is obligated to deliver the Service in accordance with the Customer’s subscription(s), and other deliverables the Service Provider is responsible for, with due care and know-how that can reasonably be expected from an experiences Service Provider in accordance with the Agreement and these Terms.

The Service Provider shall provide the standard Service in completed form ready to use and assist with full-service provisioning as long as an Agreement is in effect. In cases of normal, careful usage by Customer, the Service Provider shall without charging, correct errors or omissions that affects service delivery.

2.2  Additional Services

Additional Services can be arranged in addition to the Standard Service and these Terms will also apply to these.

 

3.    Users and Licenses

The Service Provider registers the number of simultaneously connected Users (“Licenses”) of the Service registered in the Service Provider’s monitoring system during the invoicing period. The Customer may create an unlimited number of Users and give them access to the Service and may outside of the agreed minimum License requirement on their own increase or decrease the number of Users as required.  The Customer is as a minimum invoiced for a minimum of Licenses and use beyond this is invoiced according to the Service Provider’s monitoring system. Access to the Licenses is limited to the term of the Agreement and is only valid for the use of the Service and only for the agreed to purpose.

The Service Provider agrees that when invoices to the Customers is paid in full, the Customer will be granted access to the Service on a non-exclusive basis in accordance with the Terms and other conditions as specified in the Agreement.

The Customer may sell on and/or offer the Service to its customers, with the explicit understanding that such customers will use the Service as stipulated in the Agreement between TMG and Customer.

 

4.    The Rights and Obligations of the Customer

The Customer is responsible to ensure that the Service meets the Customer’s intended use and accept that the Service Provider specifically is excluded from any obligations or warranties for a specific use of the Service by the Customer.

The License gives the Customer rights to use the Service at any time during Agreement validity. The Customer is nevertheless responsible for the use of the Service in accordance with the Agreement and shall not use the Service in a way that may destroy, deactivate, or otherwise have a negative effect on Service performance.

The Customer is responsible for securing the login information and other confidential information with respect to the Service and must inform all Users about safe use and the current Terms. Without written consent from the Service Provider ahead of time, the Licenses are only for internal use by the Customer, and the Customer may at no point provide login information to others, with a possible exception of other organizations directly affiliated with the Customer.

Irrespective of the forgoing it is the Customer that is responsible for all use of the Service, including but not limited to, its Users, the Customer’s customers, and their users, and shall obey all current laws and regulations with respect to the use of the Service, including those regulations that are related to Personal Data, including but not limited to, privacy and any transmission of data that can be used to identify an individual.

The Customer shall not attempt to gain access to any part of the Service that the Customer has not been granted access to in writing by the Service Provider and guarantee that they will not, directly, or indirectly, try to alter, copy, decompile, adjust, reverse engineer, or by other means try to access the source code of the Service or any other software the Service is based upon. The Customer shall not store or install the Service locally on a Customer unit without the written consent of the Service Provider.

If there is suspicion of misuse, unauthorized access or possible threats related to security where confidential information and/or Personal Data might be in danger of dissemination the Customer is obligated to immediately inform the Service Provider.

The Customer is responsible for keeping up with current demands on equipment and to procure and maintain necessary equipment and connections. The Customer is also responsible for all telecommunications costs and related expenses if the Agreement does not stipulate differently.

 

5.    Rates and Payment terms

5.1  Service Rates

Rates and other fees payable by the Customer are specified in the Attachments to the Agreement. To get access to the agreed upon Service, the Customer shall pay the Service Provider in accordance with the at any time valid index adjusted rates. The number of Subscriptions and/or Licenses are invoiced based on actual utilization if exceeding an agreed upon minimum. Unless otherwise is agreed to in writing, the rates specified in the Agreement shall include all official taxes and/or fees as determined by the government at the time of signing, with the specific exception of Value Added Taxes (VAT). The VAT shall be added to the rates upon invoicing in accordance with the prevailing VAT regulations. In cases where official taxes or fees, or the collection practices of such taxes and/or fees change as a result of changing regulations or taxation practices, the Rates specified in the Agreement will be adjusted accordingly without consideration of other rules and regulations outlined in the Agreement. If these taxes and/or fees are implemented retroactively by the government, the Service Provider reserves the right to also change its collection and Rates retroactively.

In cases where the Rate for a specific Product or Service in not agreed upon in writing, the Service Provider’s most current pricing sheet be the basis for invoicing without reduction of Rates.

Beyond what it outlined above the Service Provider has the right to adjust its Rates giving thirty (30) days prior written notice. The changes in Rates does not have any bearing on invoices due prior to the changes enter into effect. In such cases where the Customer cannot accept the changes to the Rates, the Customer has the right to terminate the Agreement as of the date the new Rates come into effect by providing the Service Provider with written notice of such termination fourteen (14) days prior to the new Rates enter into effect.

5.2  Adjustments to the Rates

The Rates are adjusted on January 1st every calendar year based on the changes in the consumer price index from the previous year, with the comparison month being January from the previous year.

5.3  Invoicing and Payment Terms

Invoices are sent out the 1st of every month in advance of the Service Period. Unless otherwise is stated in the Agreement, the payment term is 10 business days. Any consumables are invoiced after the fact based on actual use the following month.

Interest on overdue invoices are calculated based on Norwegian law. Neither Party may prorate or off-set the other Party’s demands or account receivables. In cases where the Customer cooperates with the Service Provider to solve payment conflicts and/or, within reason, challenges the amounts invoiced, the Service Provider may, at its own accord, choose to forgo the accumulated interest. The Service Provider nevertheless has the right to adjust the Service Terms giving shorter settlement period of invoices if the Customer misses a payment deadline.

Should an invoice remain in arrears beyond thirty (30) days from due date despite of written reminders to settle, the Service Provider may suspend the Customer’s access to the Service without liability until the Customer has paid invoices in full in accordance with this Agreement.

The Service Provider has the right to terminate all the Customer’s accounts if the payment remains overdue fourteen (14) days after the Service was suspended for lack of payment.

 

6.    Availability and Support

6.1  Availability

The Service shall be available except for down-time due to necessary maintenance. The Service Provider’s maintenance schedule and routines are highlighted in the Maintenance Guidelines Appendix. The Customer shall be notified prior to scheduled maintenance not outlined in the Maintenance Guidelines Appendix and that can reasonably be considered to affect Service Availability.

In cases of unplanned down-time or the Service is unavailable to the Customer, and that leads to inaccessibility for the Users to use the Service as intended, and the reason can be traced back to faults the Service Provider reasonably can be said to be responsible for, the Service Provider may offer a rebate on the next invoice in accordance with common industrial practice, provided Customer immediately notifies the Service Provider of the issue and asks for such rebate within fourteen (14) days of the down-time occurrence, when the Service Provider agrees with the Customer with regards to the down-time. The rebate shall be equal to the period of time the Service was unavailable to the Customerand shall be the Customer’s only possible compensation for the down-time.

6.2  Support

All contact with regards to operation and support shall be in writing to support@telemagic.no.

The Service Provider has resources available for error correction and support during standard working hours, Monday through Friday, 08:00 to 16:00 CET, with Daylight Saving in effect.

A User Manual is provided both for the Administrator interface and the Agent GUI used to explain how the Service is used. A greater need for support, training and general assistance on the System is to be expected in the first three (3) months (“Initial Agreement Period”). The Service Provider is obligated to provide reasonable technical, and user required, support during the Initial Agreement Period on its own Service. It is however not the intention that the Service Provider shall provide such basic support beyond the Initial Agreement Period but be available to offer guidance so that the Customer can handle the operations of the System on their own. The Service Provider shall inform the Customer if the support exceeds what can be reasonably expected by the Service Provider to provide, or if the support requests are for third party products that is provided by the Service Provider as part of the Service. Needed support beyond the Initial Agreement Period is invoiced by the Service Provider based on the most up to date Pricing Sheet provided by the Service Provider.

To avoid any confusion, the Service Provider has no obligations to provide support, assistance or maintenance of third-party equipment or software, or to the Customer’s customers, and the Customer shall be responsible to obtain, and maintain operational functionality of the Customer’s own equipment needed to use the Service. The Customer is responsible for the security of its own computer network and other external costs related to the use of the Service.

 

7.    Changes to the Service

The Service Provider reserves the right to implement improvements, add or remove features, or correct errors or omissions in the Service on its own accord, without obligations or responsibility resulting from such actions or omissions.

The Service Provider can make smaller incremental adjustments or changes considered to improve the Service without notifying the Customer beforehand. Larger adjustments that may affect the availability of the Service, obligates the Service Provider to notify the Customer well in advance of such adjustments, or if not reasonably possible, immediately following the changes brough on by the adjustments become apparent.

In the unlikely situation that such modifications deactivates or removes features that comprise a major part of the Service for a period of more than two (2) months, the Customer may cancel the Service or affected Service component and receive a comparable rebate for the affected Service component for the remainder of the Term of Agreement.

 

8.    Customer Data and Personal Information

8.1  Treatment of Customer Data

The Partis shall treat information and Personal Data in accordance with the valid laws and regulations with respect to data protection, including the EU regulation 2016/679 General Data Protection Regulation (GDPR). Additional information is found in the Service Provider’s Privacy Policy (https://www.telemagic.no/en/privacy-policy/).

8.1.1          The Customer is responsible for the processing and manipulation of collected data.

The Service involves processing and manipulation of collected data, including storing of such data on the Service Provider’s virtual servers. The Customer is responsible for the correct processing and treatment of data in accordance with applicable laws and regulations and hereby concur to and guarantee that the Customer owns, or otherwise have secured legal rights to transfer the data to the Service and that the Customer is responsible for the accuracy, integrity, content, trustworthiness and legality of such data, including transfer and instructions to the system.

The Customer may not use the Service to process sensitive Personal Data. When necessary, it is the Customer’s responsibility to inform their customers about the storage and processing of Personal Data while using the Service, and when needed obtain approval for such inclusion.

The Customer shall report, whenever it is demanded by law, the treatment of data to the appropriate governmental bodies and the Customer is responsible for ensuring that the data processing does not break the relevant laws and regulations with regards to such data. It is the Customer’s responsibility to notify the relevant authorities in case of misuse or other unauthorizes dissemination of specific categories of data, including but not limited to, Personal Data.

8.1.2          Data Processing by Service Provider

The Service Provider and its suppliers (located in Norway as well as abroad) is processing data. The Service Provider and its suppliers agree that the processing of the Customer’s datasets shall only be on behalf of the Customer, and only for the for the specific use of enabling Service Delivery in accordance with the Agreement and, at any given time, laws and regulations, and in addition follow the instructions of the relevant governmental oversight of the Service provided.

The Service Provider and its suppliers have completed the technical and organizational security measures described in these Terms and the Agreement to protect the data from loss, misuse and unauthorized manipulation, and these measures represents a security level that is appropriate considering the threat faced and with respect to reasonable costs of these measures.

The Service Provider and its suppliers have no reason to believe that the laws and regulations in effect at the time of the Agreement hinder the Service Provider and its suppliers from adhering to Customer instructions, and the Service Provider shall notify the Customer without delay when data accesses is requested by the authorities or police, unless such disclosure to the Customer is prevented by instructions from a competent court. In addition, the Service Provider shall inform the Customer of any unauthorized access or dissemination of the Customer’s data, and at any request received directly from a person/entity that is part of the Customer’s data, without the Service Provider first responding to the request, unless, through other means, the Service Provider is obligated to do so.

The Customer shall be responsible for the Customer’s own data and to ensure that the Customer’s data does not, in any way, violates a third party’s immaterial rights or is in breach of valid rules and regulations. In case of a breach of the forgoing, the Customer will be responsible for, and hold the Service Provider harmless against, any legal demand or claim, lawsuits, processes, losses, obligations, harm, costs and expenses (including appropriate legal fees) towards or assigned to Service Provider.

8.2  Collection of information

8.2.1          The Customer’s Data

The Service Provider and its suppliers collects and use information provided by the Customer and its Users when the Service is in use. This information may include, but is not limited to, contact information like name, e-mail address and phone number, financial information like credit card information and other information like username, password, user settings, and invoicing and transaction information. 

8.2.2          Automated data collection

The Service Provider and its suppliers may also collect and use information through the use of automated data collection tools like built in web-links and information capsules/cookies, or in certain e-mails sent by the Service. Such information may, but is not limited to, tracking information transmitted from the User’s browser to a website, like what browser and language used, IP addresses, URL where the User originate, as well as what links the user clicks on and when.

8.2.3          Publicly available information

The Service Provider and its suppliers may also use information from official or commercially available sources and combine this information with the information the Service Provider and its suppliers collect through the Service.

8.3 Use of data

The Service Provider and its suppliers collect information to improve the Service and its web presence, including information related to but not limited to, use and traffic analysis to improve stability and faster response time within the Service, by identification of bottlenecks and other service interruptions, or allow user specific configuration of the Services, identify and prevent security threats, and perform necessary maintenance like error identification, provide support, perform analysis, improve the User Interface and the content of our websites and measure results of marketing activities, process Customer orders, and make it possible for the Users to store personal preferences. 

The Service Provider has the right to share the collected information with its partners, suppliers, or other entities affiliated with Telemagic Group AS. Unless otherwise is stated herein, the Service Provider will not sell, lease, or in any other way make the collected information or data available to third parties, unless in the following or similar situations.

  • to adhere to laws or regulations, or to respond to a legal demand from the authorities or the police, e.g. in case of a court ruling, or similar;
  • to investigate or prevent security threats or scams; and,
  • in case of reorganizing, merger, full or partial sale of Telemagic Group AS, where personal information can be provided as part of the process.

Irrespective of the aforementioned the Service Provider must in all such circumstances ensure that alle parties comply with all obligations identified herein and get this confirmed with respect to each disclosure.

Irrespective of the aforementioned the Customer may from time to time propose, comment or provide feedback (the “Feedback”) with regards to the Service or confidential information that originally was provided by the Service Provider. The Customer agrees that all such Feedback is voluntary and even if it is identified as confidential (if it is not covered by a specific written agreement), such Feedback will not constitute confidentiality for the Service Provider. The Service Provider is hereby free to use, disclose, reproduce, license or in other ways distribute such Feedback without obligations of limitations in any form with respect to another party’s immaterial rights or otherwise. Regardless of the above, no such rights is granted to immaterial rights that existed prior to the signing of the Agreement.

8.4 Information Security

The Parties hereto shall protect Personal Data they are responsible for against unauthorized access, tampering or damage, as well as ensure confidentiality, integrity and availability of the Service.

The Service Provider guarantees that the Personal Data will be securely stored and that all data will be handled appropriately and in accordance with GDPR guidelines. Strict security routines are in place to ensure that Personal Data is not damaged or destroyed as described in the up to date “TMG Hosting and Security Document”. If a supplier is involved, the Service Provider demands that it too have similar measures to protect Personal Data.

The Customer, or an external auditor on behalf of the Customer, may audit the Service Provider to ensure that it fulfils its obligations with regards to security routines.  The Customer must inform the Service Provider no less than fourteen (14) days prior to an Audit and acknowledges that any such Audit must be conducted in a way that leads to minimal interruptions and associated costs for the Service Provider. It is recognized by the Customer that the Service Provider is bound by confidentiality towards other customers and suppliers, and that such confidentiality is to be respected. The Service Provider shall correct any deviations found during the audit as quickly as practically possible and each Party hereto shall cover its own costs with respect to the audit.

9.    Confidentiality and Secrecy

Each Party shall hold in confidence all materials and information received from the other Party, if it is marked confidential or should be reasonably understood to be confidential, and such materials and information cannot be used for other purposes than what is explicitly agreed to in the Agreement or Terms and shall only be shared with employees and suppliers where it is critical to them to adhere to the Agreement.

The confidentiality guidelines given in The Public Administration Act (of February 10th, 1967) pertains to the Service Provider’s employees who also is obligated to follow the relevant security measures currently in effect at the Customer when such are specifically communicated.

The Confidentiality shall nevertheless not include materials or information that, (a) is generally available or in other ways public knowledge, (b) that has been obtained from a third party without duty of confidentiality; (c) which was in the possession of the recipient before receipt of the confidential information; (d) that the receiving Party has independently developed without the use of information received from the other Party, or (e) that the receiving Party is obligated to disclose due to laws or regulations given by a competent government body.

Each Party has the rights to use the professional skills or experiences accumulated through the transaction of the Agreement.

The Rights and Obligations in this section shall survive the termination of the Agreement regardless of cause and shall be valid for no less than five (5) years from the date the Agreement comes into effect, or if the confidential information is revealed to the public after signing of the Agreement, for a period of five (5) years from the date of publication.

In case of publications or press releases, both Parties shall agree beforehand in writing. Irrespective of what is written in this confidentiality section however, each Party shall have the right to use the other Party’s logo and name on their website and in general marketing materials to highlight that the Party is a Customer, Supplier, or Partner depending on business relationship, but shall respect the procedures and/or guidelines given by each Party for use of its name and/or logo.

 

10. Copyright, Property, and Immaterial Rights

10.1          Specially developed software

The Service Provider enjoys, without any form of compensation, full creative, use and ownership to all software that is developed during the Agreement period.

10.2          Immaterial Rights

Except for company information, the Service Provider guarantees that the Service used as described by the Agreement, the Terms and instructions from the Service Provider is not in breach of any third-party Copyright that may be enforced in Norway. The Agreement has no impact on any Immaterial Rights either Party had prior to entering into the Agreement. The Agreement shall not give any Party direct, indirect, or intrinsic right or license to use or in any other way use the Immaterial Rights of the other Party.

The Service Provider and its suppliers or its licensors are owners of all Immaterial Rights (“IPR” aka “Intellectual Property Rights”) to the Service. The IPR includes, but is not limited to, copyright, patents, trademarks and brand names, general and specific designs, source code, databases, business plans and know-how, registered or not. All documents, including manuals, user guides and other written, electronic, or oral descriptions of how the Service is functioning and its use, is to be considered as part of the Service and comes with the same restrictions in Terms of Confidentiality. All copyright, trademarks, product names, company name or logos that is part of, or are mentioned anywhere in the Service is the property of its respective owners.

The Immaterial rights to the Service and any changes, modifications, or new versions that follows is the soul property of the Service Provider. Product names that identify the Service, are considered Service Marks and Trademarks belonging to the service Provider or a third party and no rights or license is given to use these beyond the usage of the Service. The Agreement does not give ownership rights to the Service or the Immaterial Rights of the Service Provider.

The Service Provider makes no claim to the data owned by the Customer that is uploaded to the service. The immaterial rights and the titles to the Customer’s data belongs to the Customer. The Customer recognizes that, unless otherwise specifically outlined in the Agreement, that no other rights, titles, or interests, are given.

When third party software is provided by the Service Provider and/or is suppliers, as part of or in conjunction with the Service, then such software is part of the Agreement unless otherwise is provided in connection with the delivery of such software. The Customer recognizes that the Service Provider may suffer irreparable damage if its IPR is violated and that the Service Provider and its suppliers or its licensors shall be entitled to take all reasonable steps to protects in proprietary or commercial interests, including those granted by law. The same applies if the Customer has obtained, or tried to obtain, information or data the Customer does not have rights to in accordance with the Agreement.

 

11. Limited Guarantee

11.1          Service guarantee

The Service Provider guarantees that the Service shall function as described in the Service Documentation provided as long as it is properly configured by the Customer.

Nevertheless, the Service Provider does not guarantee that the Service will meet the Customer’s requirements, function correctly with the equipment, systems, or configurations, chosen by the Customer, have no down time or free from errors.

The Customer hereby accepts that the Service and the delivery of the Service will not be one hundred percent free from errors and that the improvement of the Service is a continual process. The Customer as such accepts that the Service is provided “as is” and that the Customer uses the Service at its own risk.

11.2          Error Corrections

If the Service does not function in a manner that can be expected from the limited warranty that is provided in the Agreement and other documentation, the Service Provider is obligated to correct verified errors or omissions in the Service at the Service Provider’s own expense, but without giving a guarantee as for the timing of such error correction.  The Service Provider has the rights to replace the Service or a specific function instead of performing an error correction. Without reference to the above however, if the Service Provider does not correct a verified error or omission within a reasonable time, the Customer has the right to terminate the subscription to the affected Service or function. If cancelling for cause as described herein, the Customer has the right to proportional credit on the specific subscription fee for the affected Service or function, to be applied to the invoice the month after the Service Provider has acknowledged the error or omission. Beyond such credit, the Customer may not direct other claims, direct or indirect, towards the Service Provider.

11.3          Limitations

The Service Provider delivers the Service “as is” and “as available”, and neither the Service Provider or its suppliers or licensors provides any guarantee, explicit or perceived, including but not limited to, guarantee of good warrants, guarantees of ownership, non-infringement, salability, or appropriateness for a specific possibility of system integration. No declarations other than those specifically given in the Agreement is made with respect to the Service and the Customer shall not rely on information that is not provided by the Agreement or specifical documentation accompanying the Agreement.

This paragraph comprises the Service Providers limitations of warranty in its entirety, and supersedes all other guarantees, conditions, obligations or terms for all Services and functions, inclusions, quality assurances, viruses, back doors, titles, accuracies, or completion of answers, results and/or lack of staffing, in case there is a conflict between this paragraph and any other paragraph in this document or the Agreement.

11.4          Invalidation

If a competent court finds that any part of these terms or the Agreement to be invalid, it shall have no effect on the validity of other parts of these Terms or the Agreement. In such cases, the specific section shall be replaced to the extent possible, with a new section that achieves the originally intended meaning of the section.

 

12. Limited Liability

If the Service Provider or its suppliers are held liable to pay compensation to the Customer as a result of a breach of the obligations provided by the Agreement by a competent court, then any such compensation shall not, under any circumstance, include compensation for direct or indirect losses or damages of any kind resulting from or in conjunction with, such a breach, including but not limited to goodwill, loss of data, production, revenues or profits, or claims made by third parties or                governmental restrictions.

In cases where the Customer is informed of the possibility of damage, and where the Service Provider gives guidance to the Customer on how such damage can be avoided and the necessary steps has not been taken by the Customer, the Service Provider’s liability is nullified.

The Service Provider’s and its suppliers’ responsibility resulting from the Agreement is nevertheless limited, unless otherwise demanded by unavoidable consequences following damage caused by gross negligence or intent by the Service Provider or its employees. All credits and compensations for direct loss or costs shall be limited to an amount not exceeding two (2) months subscription fees (accumulated user licenses) for the Service in the same period.

The limited liability does not include damage caused by 1) intentional or gross negligence; or 2) breach of confidentiality as outlined in the Confidentiality and Secrecy Clauses in these Terms.

12.1          Customer Data

The Service Provider or its suppliers and in no way responsible for the content or have ownership to the Customer’s Data, nor are they in any way responsible for any instructions or manipulation of the Customer’s data or any other activity undertaken by the User.

The Service Provider is on the other hand responsible to ensure that a backup is taken ones per day of the Customer Data (information uploaded to the Service by the Customer or its customers). The Service Provider is furthermore responsible for maintaining and securing these backups in accordance with prevailing industry standards.

If Customer data is deleted, lost, changed or damaged by someone using a Customer ID, or the Customer’s own actions have deleted, lost, changed or changed the Customer Data, the Service Provider is entitled to charge for the restoration of such Customer Data in accordance with the price lists valid at such time.

12.2          Internet

Internet connections utilized to gain access to and use the Service is not provided by the Service Provider and is also not maintained by the Service Provider. The Service Provider has as such no control over the Internet. Therefore, the Service Provider is not responsible for failures or interruptions of operations of any part of the Internet, or regulatory changes with regards to the Internet. The Service Provider shall nevertheless undertake all commercially viable options deemed necessary to correct or avoid such incidents, but the Service Provider cannot guarantee that interruptions will not occur. The Service Provider is not responsible for the performance or lack of performance of Internet services or suppliers.

The Service Provider and its suppliers take reasonable care to ensure secure transmission of information between the Customer and the Service, but the Customer acknowledges that the Internet is an open system and that the Service Provider cannot guarantee that a third party may or will intercept or change the data or the transmission itself. The Service Provider accepts no responsibility for any such unintentional use, publication, or loss of Customer data.

12.3          Links (web connections)

Links to websites that are not owned or under the direct control of the Service Provider and is not part of the Service or belongs to websites or is given in documentation with respect to the Service, is only there to provide better user experience. The Service Provider is not responsible for such websites.

12.4          Telephony

The Service Provider is not responsible for telecommunication traffic (telephony) and associated costs. This also includes unauthorized access to, or misuse of, the Service that includes telephony.

Should the Customer want protection against unauthorized access to, or misuse of, the telephony service given as an upper cost limit with access blocking when the limit is reached, this must be separately agreed in writing.

12.5          Force Majeure

Neither the Service Provider, its suppliers or the Customer shall be held responsible for delays or errors in performance resulting from or in connection with a Force Majeure situation (hereinafter “Force Majeure”), understood to be Acts-of-God (natural occurrences like earthquakes, flooding, etc.), riots, cyberattacks, (hacking, etc.), internal or external sabotage, governmental actions, employee related conflicts or other occurrences that in similar ways are outside of the control of the Service Provider, its suppliers or the Customer.

In case laws, rules or regulations that is pertinent for the Service, or the delivery of the Service, changes or new regulations come into effect after the Service is made available in the market and this prevents the Service Provider and its suppliers from completing the instructions received from the Customer or their duties under the Agreement, and/or this demands complete or partial cessation of Service for a limited time or undetermined period, shall be considered Force Majeure.

Should Force Majeure arise where it becomes impossible for the Parties to complete their obligations under the Agreement, then the obligations of the Parties shall be suspended for the period Force Majeure lasts. Notice of Force Majeure shall be given without reasonable delay to the other Party as shall the end of the Force Majeure. Should the Force Majeure drag out in time, the Parties have the right to terminate the Agreement if the Force Majeure lasts, or is expected to last, longer than sixty (60) days, and then by giving fourteen (14) days notice.

Neither Party shall be held responsible for the consequences resulting from delays or lack of compliance to a contractual obligation under Force Majeure unless the Party was able to affect it at the time that the Agreement was entered into and the resulting consequences the Party could not have reasonably avoided or overcome.

Force Majeure does not release the Parties from economic obligations and payables for the period leading up to the Force Majeure.

 

13.  Agreement Duration and Cancellation

The Agreement is automatically renewed at the end of each period and can be cancelled giving 12 months written notice unless otherwise is agreed to in writing. When the Service is cancelled all data and copies thereof will be deleted from the Service Provider’s servers after ninety (90) days unless otherwise is agreed to in writing. In case of complete termination of the Customer’s subscriptions and user licenses, for whatever reason, the Service Provider will provide the Customer with a copy of the data or an opportunity to copy the data in a format, and at a time, and by such method that is specified by the Service Provider. The Service Provider shall not have any further obligations towards the Customer to store or maintain the data. Should the Customer not be able to copy the data, the Customer must contact the Service Provider no later than thirty (30) days after cancellation. Unless otherwise is specifically agreed to, the data cannot be restored after the expiration of the ninety (90) days from Cancellation. The Service Provider recommends that the Customer contacts the Service Provider well in advance to plan, migrate and take security copies of the data. The Customer shall cover any expenses that Service Provider has in connection with the retrieval of data based on the Service Provider’s rates for Consulting Services at the time of the request.

The Service Provider is not responsible for losses or damage, direct or indirect, to the data, operations, revenues, profitability or third party demands that can result from cancellation.

The Parties hereto agree that no claim related to the Agreement shall be raised after one (1) year has passed from the termination of the Agreement.

 

14. Termination/Closure of Service

Either Party has the right to terminate the Agreement without prejudice if the other Party significantly breaches its obligations in accordance with the Agreement or it is clear that such significant breach is likely to occur. Notice of termination shall be sent in writing to the other Party’s business address by registered mail. Before the Agreement can be terminated there will be a fourteen (14) day grace period from receipt of the termination letter to correct the items that allows the Agreement to be terminated without prejudice. Should the reason for termination be corrected within the fourteen (14) days, the termination is to be considered Null and Void.

The Service Provider may, giving ample notice to the Customer suspend the Customer’s subscriptions of there is suspicion of any breach of the Customer’s obligations in the Agreement until such time that the breach has been corrected to the satisfaction of the Service Provider. Should payment not be fulfilled in accordance with the Agreement the Service Provider may suspend the Customers access to the Service (reference §5.3 Invoicing and Payment Terms). The Service provider is not responsible for potential direct or indirect losses or damage, including but not limited to, goodwill, loss of data, operations, revenues and profitability, or demands from a third party that may arise as a result of the suspension of the Service.

 

15. Indemnification

15.1          Service Provider

The Service Provider and assist the Customer in defending against potential claims where a third party maintain that the Customer’s use of the Service in accordance with the Agreement is in conflict with or violates a third party’s patent rights, copyright or other immaterial rights, as if the demand was directed towards the Service Provider itself. The Customer shall notify the Service Provider immediately in such a case. The Service Provider shall, to the degree that the Service Provider is held accountable, indemnify the Customer for all liabilities, costs, damage and expenses or losses the Customer is instructed to pay by a court of law, or an arbitrated settlement, as well as legal fees, as long as the Customer cooperates with the Service Provider at the Service Provider’s expense and grants the Service Provider complete jurisdiction of the judicial procedure and settlement, where the settlement indemnifies the Customer from liability. The Service Provider by its own determination

  • change the Service so that any conflicts are removed,
  • replace the Service with Services that fulfill the same functions,
  • obtain usage rights for the Customer’s continued use of the Service, or
  • terminate the Customer’s subscriptions (usage rights) while refunding payments made towards the subscription period based on the termination date.

The Customer cannot make any further claims resulting from a breach of the rights of a third party.

15.2          Usage in breach of the Agreement

The aforementioned liability is not valid if the Service has not been used in accordance with the Agreement or if the liability occurs due to any change, integration or customization of the Service not preformed by the Service Provider.

15.3 Customer

The Customer shall defend the Service Provider against all claims or lawsuits where a third party claims that the Customer’s data or the usage of the Service in accordance with the Agreement is in conflict with or violates a third party patent, copyright or other immaterial rights, as if the claim was directed towards the Customer itself. The Service Provider shall immediately inform the Customer if such a claim is put forth. The Customer shall hold the Service Provider free of liability with respect to costs, damage, expenses, or losses that the Service Provider is instructed to pay by a court of law, or an arbitrated settlement, as well as legal fees.

 

16. Transfer

The Customer may not, in part or as a whole, transfer its obligation in the Agreement to a third party without the Service Provider’s written approval.

The Service Provider may transfer the Agreement or the rights and obligations hereunder to a third party as long as the business activities of the Agreement is being transferred to the same third party without further approval by the Customer.

Beyond the aforementioned, either Party has the right to transfer the Agreement or any rights or obligations stemming from it to a third party without written approval by the other Party. Irrespective of the above however, either Party may transfer its receivables in accordance with the Agreement to a third party.

 

17. Conflict Resolution

The Agreement and all issues arising from or in connection with the Agreement shall be in accordance with Norwegian Law, without reference to its choice of jurisdiction, and the Parties’ right and obligations shall in their entirety be governed by Norwegian Law. Conflict between the Parties shall be attempted resolved through negotiations. Should negotiations not succeed the conflict shall be resolved through arbitration in accordance with Norwegian arbitration regulations. The arbitration shall take place in Arendal and its ruling shall be binding on the Parties.

Either Party, prior to or during the arbitration, can seek from a competent judiciary a temporary injunction against the other Party from visiting the office addresses of the injunction seeker where such injunction is necessary to protect the Party’s interest while awaiting arbitration.

Regardless of this the Parties can demand payment of receivables in accordance with the Agreement, regardless of the arbitration proceedings or ruling.

The Parties hereto agree that the arbitration and all associated materials and information shall be treated as confidential information in accordance with the sections “Confidentiality” in these Terms.

 

18. Changes to the Agreement/Other Items

The Agreement along with these Terms comprise the entire Agreement between the Parties with respect to the Service and shall supersede and render null and void any previous agreements, proposals, obligations or other representation and communications between the Parties.

The Agreement and its Appendices can be changed by the Service Provider giving the Customer thirty (30) days written notice. The Customer has the right to terminate the Agreement if the changes are not acceptable the Customer before they come into effect. No change to the Agreement or the Terms are valid unless in writing.

Both Parties acts in its own name and on its own behalf. Neither Party has the right to enter into an Agreement or ratify obligations on behalf of the other Party.

Any Party’s failure to insist on compliance of one or more of the Terms or part of the Agreement or a failure to enforce any terms or conditions in the Agreement, shall not be deemed as acceptance or revocation of any rights or legal avenues the Parties have in similar conditions in the future.

Should any paragraph of the Agreement be found to be, or become, invalid, illegal, or unenforceable in any manner, the part covering the specific issue be severed from the remaining paragraphs in the Agreement, which will continue to be valid and enforceable to the full extent of the law.