Terms & Conditions for the provision of Aize
1 INTRODUCTION
1.1 These Terms & Conditions (the “T&Cs”) regulates the provision and use of Aize and applies between Aize AS (the “Supplier” or “Party”) and the company (“Customer” or “Party”) (collectively the “Parties”) set out in an executed Order Form. The Order Form and the T&Cs including its Schedules constitute the agreement between the Parties governing the provision of Aize (the “Agreement”).
1.2 The Order Form takes precedence over the T&Cs and the Schedules, and the T&Cs take precedence over the Schedules.
1.3 Capitalized terms used in this document are defined in the Glossary in clause 19.
2 SERVICE
2.1 Subject to the terms of the Agreement, and from the Effective Date and until the Agreement is terminated, the Supplier hereby grants to Customer a limited, revocable, non-exclusive, non-transferable right to access and use Aize, on a subscription basis, as outlined and limited herein and in the applicable Order Form, solely for Customer’s and its Affiliates’ own internal business purposes.
2.2 Aize will provide support and service as regulated in the SLA.
2.3 The Customer may use Aize for such number of Assets and Tags as agreed in the Order Form. Customer may add Assets and band level of Tags (Small, Medium, Large or X-Large) by placing new Order Form(s).
2.4 Customer is responsible for permitting Authorized Users to access Aize, limited to the number of Authorized Users per Asset as stated in the Order Form. The Customer may request scaling up or down the number of Authorized Users, by sending a written notice to the Supplier. Access credentials for Aize may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer permitted to use Aize.
2.5 Customer shall only use Aize in accordance with the Terms of Use and the Agreement, and in compliance with applicable laws and regulations. Customer shall not use Aize outside the scope of its intended purpose and use, such as:
a) Disassemble, decompile, reverse-engineer, copy, translate or make derivative works based on Aize;
b) Access Aize for the purpose of building a competitive product or service or copying its features and user interface;
c) Use Aize or permit it to be used for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without the Supplier’s prior written consent;
d) Propagate any malware including virus, worms, Trojan horses or other programming routine intended to damage any system or data;
e) Store or transmit any content or data that is unlawful, obscene, offensive, fraudulent or infringes any intellectual property rights using Aize;
f) Circumvent or endanger the functions of Aize operation or its security;
g) Make Aize available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted hereunder);
h) Use Aize in non-compliance with import, export and economic sanction laws and regulations in force at any time; and
i) Use Aize for activities outlined beyond the scope of the Service Description.
3 ACCOUNT MANAGEMENT AND AUTHORIZATION. CUSTOMER’S OBLIGATIONS
3.1 Customer shall have access to a Tenant which the Customer shall use to administer its Authorized Users’ access and use of Aize. Each Customer Tenant may hold one or more Assets.
3.2 The Customer shall control which Authorized Users who get access to its Tenant. The Customer can do this either by:
a) Invitation. Customer invites the User to Aize using the Authorized User’s email address as their identity. The Authorized User follows a link to Aize and chooses credentials. In this case Aize manages the User identity, credentials, and profile; or by
b) Using Single Sign On. Customer connects its own internal IT systems and identity provider to the relevant Tenant, in providing access to the Authorized User. As such, the Customer manages the User identity, credentials, and profile.
3.3 The Customer is responsible for any activity occurring in Customer's Tenant other than activity that Aize is responsible for under this Agreement.
3.4 The Customer is responsible for all acts and omissions of the Authorized Users, as if they were its own, hereunder but not limited to their use of Aize, the activities that occur under the Authorized Users’ accounts and for any breach of this Agreement and the Aize Terms of Use by the Authorized Users. The Customer agrees to immediately notify the Supplier in the event of any action that can adversely impact the Supplier and/or Aize.
4 UPDATES
4.1 The Supplier may provide Updates to Aize from time to time at the Supplier’s sole discretion. The Customer acknowledges that it has been advised, is aware of and understands that Aize continues to be developed, and may be revised, updated or corrected at any time by further changes, Updates and Features. Updates shall not materially degrade the core functionality and purpose of Aize or materially reduce the security or data protection features of Aize.
4.2 The Supplier may make changes to the Agreement from time to time. Changes to the Agreement having a material adverse effect for the Customer shall become effective thirty (30) Days after notice has been given by the Supplier.
5 CUSTOMER DATA
5.1 The provision of Aize is dependent on the availability of and access to Customer Data, and the Customer is responsible for making the Customer Data available for the Supplier for in order for the Customer Data to be uploaded into Aize, including its availability, legality, reliability, integrity, accuracy, and quality.
5.2 The Customer shall retain all ownership and intellectual property rights in the Customer Data. The Customer grants the Supplier (including its Affiliates and subcontractors) a worldwide, non-exclusive, royalty free right to use, store, reproduce, process, and transfer any information, including Customer Data, generated and collected under or in connection with this Agreement for the purpose of providing out Aize.
5.3 The Customer is responsible for providing the Supplier access to Customer Data, either at Customer’s on prem systems or via Customer’s hosted platform. The Supplier shall under no circumstances have the right to withhold the Customer's data, or to use such data for any other purposes than as agreed herein.
5.4 For the purpose of improving Aize, the Supplier may create analyses utilizing, in whole or in part, Customer Data and information derived from Customer and Authorized User’s use of Aize. Analyses used for such purpose shall be anonymized the results owned by the Supplier. Customer Data shall not be shared with 3rd parties or used for marketing purposes without prior written consent of the Customer.
5.5 Customer is solely responsible for the availability of Customer Data, including access rights, securing and the back-up of all Customer Data.
6 PERSONAL DATA AND INFORMATION SECURITY
6.1 Customer owns and is responsible for all Customer Data, information and material of any kind uploaded to Aize by the Customer and its Authorized Users including personal data.
6.2 The provision of Aize includes processing of personal data by the Supplier, and the Supplier shall process such personal data in accordance with the DPA which shall form part of the Agreement and be entered into before the processing of personal data begins (Schedule 2).
6.3 The parties' liability for damage suffered by a data subject or other natural persons which is due to a violation of the General Data Protection Regulation (Regulation 2016/679), Norwegian Data Protection Act with regulations or other regulations that implement the General Data Protection Regulation, will follow the provisions of article 82 of the General Data Protection Act.
6.4 The Parties are individually liable for administrative fees imposed on them pursuant to article 83 of the General Data Protection Regulation.
7 FEES, TAXES AND PAYMENT
7.1 By subscribing to Aize, the Customer agrees to pay the Supplier all fees and costs as stated in an Order Form or those in effect at the time of the renewal. Customer shall not have access to Aize until all fees have been received as agreed under the Order Form. Customer cannot withhold, reduce or set-off fees owed nor reduce its usage during a Subscription Term.
7.2 Fees and other charges imposed under an Order Form are net of any taxes, such as but not limited to VAT, GST, sales and use tax, excise tax, withholding tax, all of which shall be for Customer’s account. If the Supplier is required to pay such taxes, the Customer shall reimburse the Supplier promptly and indemnify the Supplier for any taxes and related costs paid or payable by the Supplier attributable to those taxes.
7.3 The Customer must notify the Supplier of any dispute in relation to an invoice within thirty (30) Days of receipt of the invoice. Any amount not disputed shall be paid by the date(s) set out in the Order Form without any deduction.
7.4 If Customer fails to make timely payments, the Supplier shall be entitled to charge interest on any overdue amount at the rate of ten percent (10%) of the amount overdue for each month outstanding until paid.
7.5 The Supplier may audit Customer’s use of Aize. Any such audit shall not unreasonably interfere with Customer’s normal business operations. The Customer agrees to pay any fees applicable to Customer’s actual use of Aize in excess of the license rights.
7.6 The Supplier may adjust the fees at the beginning of each calendar year by an amount equivalent to the increase in the retail price index (the main index) of Statistics Norway, with the initial reference index value being the index value for the month in which the Agreement was signed. In addition to any such automatic annual price adjustments, the Supplier may adjust the fees subject to notification to the Customer no later than thirty (30) days before the end of the current term (which may be the Initial Subscription Term or any Subscription Renewal Period), such changes to become effective upon renewal of the preceding term.
8 ONBOARDING, BUILD AND CONFIGURE
8.1 The Supplier shall provide Onboarding subject to Customer’s payment of the Onboarding Fee. Such Onboarding commences on the Effective Date and shall be carried out during the Onboarding Period. If the Onboarding is not finished within end of the Onboarding Period, (i) further Onboarding shall be provided by the Supplier against payment by the Customer on a time and material basis and subject to the Supplier’s at any time applicable prices, and (ii) the Supplier may start charging the fees provided that the failure to Onboard within the Onboarding Period is not due to circumstances for which the Supplier is responsible.
8.2 If additional Asset(s) are being added to Aize by execution of an Order Form, additional Onboarding Fee(s) shall apply. If additional Onboarding Services are needed, that will be regulated in a new Order Form.
9 TERM, TERMINATION AND SUSPENSION
9.1 This Agreement shall come into force on the Effective Date and shall continue to stay in force during the Onboarding Period and any Subscription Term.
9.2 The Onboarding Period commences on the Effective Date. The Initial Subscription Term commences automatically on the first day after the end of the Onboarding Period and the Agreement thereafter renews automatically with each Subscription Renewal Period, unless terminated in accordance with the Agreement.
9.3 Either Party may terminate this Agreement and/or any Order Form upon one hundred and eighty (180) Days prior written notice effective at the end of the Initial Subscription Term or any Subscription Renewal Term in which such notice is given.
9.4 Either Party may terminate this Agreement if (i) the other Party is in material breach of its obligations under the Agreement and fails to cure such a breach within thirty (30) Days after receipt of written notice; (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) Days; (iii) failure to pay by Customer; or (iv) as otherwise provided herein.
9.5 The Supplier may suspend the provision of Aize and/or terminate the Agreement upon written notice to the Customer in the following situations: if continued use of Aize exceeds the permitted use or may result in material harm to Aize or its users, or if Customer or the Authorized Users causes a security breach, violation of law or a breach of the terms set forth in the Agreement. The Supplier shall limit a suspension in time and scope as reasonably possible under the circumstances. Customer must remedy the breach without undue delay. If Customer fails to take such actions within a reasonable time, the Supplier may terminate the Agreement, including any active Order Form.
9.6 In the event the Agreement is terminated (i) the Customer must discontinue all access and cease to use Aize; (ii) the rights granted by one Party to the other shall immediately cease; (iv) Customer and the Supplier shall delete any Customer Data in Aize within thirty (30) Days after termination has taken effect; and (v) upon request by a Party, each Party shall use commercially reasonable efforts to return and destroy all Confidential Information of the other Party. Termination, for whatever cause, does not entitle Customer a refund of paid fees.
10 THIRD PARTY SOFTWARE AND SERVICES
Aize includes certain third party software and services as disclosed in the Service Description. Such software and services are subject to separate license and service agreements, but at no additional cost for the Customer.
11 DISCLAIMER
11.1 Except as expressly provided in the Agreement, and to the fullest extent permitted by applicable law, Aize is provided ‘as is’ and neither the Supplier nor its licensors and subcontractors make any representations or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement or that the operation of Aize shall be secure, uninterrupted or error free.
11.2 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and Customer acknowledges that Aize may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
12 LIABILITY
12.1 The Supplier’s maximum liability for any claim during a Subscription Term shall not exceed one hundred percent (100%) of the fees (excluding V.A.T.) paid to the Supplier for the relevant Subscription Term, regardless of the basis of a claim. This limitation applies collectively to the Supplier, its Affiliates, contractors and suppliers. For the avoidance of doubt, any breach of the SLA shall be handled only by service credits as regulated under such SLA.
12.2 To the maximum extent permitted by applicable law, in no event shall the Supplier be liable for any special, indirect or consequential damages, loss of profits, loss of revenue, loss of data, error or interruption of use, inaccuracy or cost of procurement of substitute services, howsoever caused and whether in contract or in tort, including negligence, arising out of or in any way related to the Agreement or the use of or inability to use Aize.
13 THIRD PARTY CLAIMS
13.1 The Customer warrants that its Customer Data and its use of Aize, does not infringe a third party’s copyright, patent, or other intellectual property right, and if applicable, that a license or permission from the rightful owner has been obtained. Customer shall indemnify and hold the Supplier harmless from any direct claims brought against the Supplier and/or its Affiliates by any third party alleging that the Customer and its Affiliates’ development in using of Aize infringes a patent claim, copyright or trade secret right. Customer undertakes, at its own expense, to defend the Supplier if claims are made, or actions are brought against the Supplier for infringement of third party’s copyright, patent, or other intellectual property rights. The Supplier shall notify the Customer in writing regarding the asserted claim or action, and the Customer has the sole right to determine the defense against such action (subject to the Supplier’s right to participate with its own counsel in such defense). The Customer shall not enter into any settlement on the Supplier’s behalf without the Supplier’s prior approval. The Customer shall indemnify the Supplier against all damages finally awarded against the Supplier with respect to these claims.
13.2 The Supplier represents and warrants that that Aize does not infringe the intellectual property rights of any third party. The Supplier undertakes, at its own expense, to defend the Customer if claims are made or actions are brought against the Customer for infringement of another party’s copyright, patent, or other intellectual property rights. The Supplier’s undertaking shall only apply provided that the Customer, without undue delay, notifies the Supplier in writing regarding the asserted claim or action, and that the Supplier has the sole right to determine the defense against such action (subject to the Customer’s right to participate with its own counsel in such defense). The Supplier shall not agree to any settlement on Customer’s behalf without the Customer’s prior approval.
13.3 The Supplier is not responsible for any infringement of third party’s copyright, patent, or other intellectual property rights where the Customer has made modifications or alterations to Aize or results or otherwise used or handled Aize in breach of the Agreement, and infringement would not have occurred save for these modifications, breaches or alterations.
13.4 The Supplier shall have no obligation for any claim based on Customer’s use of Aize, after the Supplier has informed and/or made available Updates or Features or made changes in Aize required to avoid such claims and offered to implement those Updates, Features, or changes, if such claim would have been avoided by the implementation of such.
14 RIGHTS OF OWNERSHIP
14.1 The Supplier, its Affiliates or licensors have sole and exclusive ownership of Aize, Service Descriptions and any other related material and any derivative works. The Customer does not have, and shall not claim or assert, any right, title, interest, or other ownership or proprietary rights in or to Aize, or other intellectual property provided by the Supplier.
14.2 Ownership in all intellectual property to any results developed and produced by the Supplier by using Customer Data or otherwise, shall, to the greatest extent permitted by applicable law, be retained by the Supplier.
14.3 If the Customer provides the Supplier with any suggestions, comments or other feedback regarding Aize, the Customer acknowledges that the Supplier can freely use such feedback for its own business purposes, such as improving and developing Aize and without any further obligations towards the Customer. Any output and/or resulting from such improvements and/or development, shall be owned by the Supplier.
15 CONFIDENTIALITY
15.1 Both Parties shall protect the other Party’s Confidential Information to the same extent it protects its own Confidential Information and not less than a reasonable standard of care.
15.2 A Party shall not disclose any Confidential Information of the other Party to any person other than (i) its Affiliates, personnel, representatives, vendors, cloud infrastructure providers whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement (ii) is required by applicable mandatory law or relevant court order. The Customer shall not disclose the Agreement or the pricing to any third party. Any disclosure permitted in this clause 15.2 shall only take place subject to adequate non-disclosure provisions.
16 PUBLICITY
Neither Party shall use the name of the other Party in publicity activities without the prior written consent of the other, except that Customer agrees that the Supplier may use the Customer’s name, logos and user experience references in customer listings or presentations to its investors or as part of the Supplier’s marketing efforts (including reference calls and stories, press testimonies, etc.)
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17 GOVERNING LAW AND JURISDICTION
17.1 The Agreement and any claims relating to its subject matter shall be governed and construed under the laws of Norway, without reference to its conflict of law principles.
17.2 All disputes shall be subject to the exclusive jurisdiction of Oslo City Court, Norway.
18 MISCELLANEOUS
18.1 Any delay in performance (other than for the payment of amounts due) due to Force Majeure is not a breach of the Agreement and the time for performance shall be extended for a period equal to the duration of the conditions preventing performance. Both Parties shall endeavor to mitigate the impact on its obligations, and the Supplier shall be entitled to extension of time as a result of such. The Customer waives the right to claim breach of contract under such circumstances.
18.2 The Agreement does not confer any benefits on any third party unless it expressly states that it does.
18.3 The Parties are independent contractors, and no partnerships, franchise, joint venture, agency, fiduciary or employment relationship between the Parties is created by the Agreement.
18.4 The Customer shall not assign or transfer the Agreement (or any of its rights or obligations under the Agreement) to a third-party without the Supplier’s prior written consent which shall not be unreasonably withheld or delayed. Any such assignment in violation of this clause shall be void. This prohibition shall not apply to assignment of the Agreement to a Customer Affiliate or to an entity that succeeds to or acquire all or more than fifty percent (50%) of all the business or assets of the Customer through merger, consolidation, or acquisition of stocks or assets.
18.5 If any of the provisions of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability shall not affect the other provisions of the Agreement.
18.6 Any clauses which by their nature should survive termination, shall survive termination of the Agreement.
18.7 All notices must be in writing and addressed to the other Party’s primary point of contact stated in an Order Form.
19 GLOSSARY
In addition to the definitions provided within the T&Cs, the following words shall have the meaning as set out below:
“Affiliates” means any legal entity which is controlled by a Party. For the purpose of this definition, “control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding shares, or the ability to appoint a majority of the directors, of such entity.
“Aize Policies” means privacy terms, security terms, copyright and acceptable use of trademark.
“Aize” means the service Aize provided by the Supplier as described under the Service Description.
“Assets” is defined as an independent instance on the Customer’s Tenant, in which the Customer may virtually build specific facilities.
“Authorized Users” means those employees, agents and independent contractors of Customer and/or its Affiliates who are authorized by the Customer to use Aize solely for the Customer’s internal business purposes. Such Authorized Users may be:
a) Enterprise Users: Customer connects their own internal IT systems and identity provider to Aize, in such a way that they can use their existing IT systems, users and tools to provide access to the User. The Enterprise User is a Customer employee.
b) Individual Users: Customer invites the User to Aize using the User email address as their identity. The User follows a link to Aize and chooses credentials. Such Individual Users are third-party Users, and not a Customer employee.
“Confidential Information” means information that a Party (or an Affiliate) discloses to the other Party under this Agreement and that is as marked confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the recipient, is rightfully given by the recipient by a third party without confidentiality obligations or becomes public through no fault of the recipient.
“Customer” means the customer as per the Order Form.
“Customer Data” means the data, content uploaded to, transferred through, posted, processed and entered into Aize by Customer and Authorized Users.
“Day” means calendar day.
“DPA” the Data Processing Agreement annexed to these T&Cs as Schedule 2.
“Effective Date” means the date stated in the Order Form.
“Feature” means new functionality of Aize, which the Customer may choose to add by placing an Order Form.
“Force Majeure” means any occurrence beyond the control of the Party affected, provided that such party could not reasonably have foreseen such occurrence at the time of entering into the Agreement and could not reasonably have avoided or overcome it or its consequences. Force Majeure includes, but shall not be limited to, war, acts of terrorism, riots, fire, flood, earthquake, pandemic or any acts, orders and recommendations of authorities or governments.
“Initial Subscription Term” means initial subscription term as set out in an Order Form.
“Onboarding” means the build and configure services provided by the Supplier to the Customer to onboard Assets in Aize.
“Onboarding Fee” means the fee for Onboarding.
“Onboarding Period” means the period for Onboarding as set out in the Order Form.
“Order Form” means an order form referencing the T&Cs and which sets out further details about the provision and use of Aize agreed between the Parties.
“Payment Due Date” means the due date set forth in the Order Form.
“Schedules” means Schedule 1 (The SLA as referenced in clause 2.1) Schedule 2 (the DPA as referenced in clause 6.3) as referenced in these T&Cs and Schedule 3 (Aize Terms of Use).
“Service Description” means the Aize documentation as may be updated from time to time in the form generally made available by the Supplier to its customers for use of Aize.
“SLA” the Support and Service Level Agreement annexed to the T&Cs as Schedule 1.
“Subscription Renewal Period” means successive 12-month periods following the Initial Subscription Term.
“Subscription Term” means the Initial Subscription Term or any Subscription Renewal Period.
“Tags” refers to named, uniquely identified function-location objects (in the commonly accepted industry sense) being a countable object for Asset classification. The Tags within an Asset is counted monthly.
“Tenant” means a container for the Customer's data, users and settings within Aize.
“Updates” means a new edition of Aize, and which per default is implemented in Aize. Each Update will be designated with a unique number (for example V.1, V.2, V.3).
“Aize Terms of Use” means the terms of use governing Authorized Users use of Aize.