Master Subscription - SaaS
1.0 Interpretation
1.1
The terms defined in the Term Sheet shall apply in this Agreement.
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1.2
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
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1.3
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
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1.4
A reference to writing or written includes fax and email.
2.0 Subscription Services
2.1
For the purposes of this Agreement, “Services” means the provision of the online software applications listed in the Term Sheet to the Customer via the website (hosted by a third party host (“Third Party Host”)) notified to the Customer by the Supplier from time to time, as more particularly described in the Term Sheet and the Documentation (as defined in clause 3).
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2.2
Subject to the Customer complying with its obligations under this Agreement, including without limitation any payment obligations, the Supplier hereby grants the Customer, on the Terms and Conditions of this Agreement, a limited, non-exclusive, non-transferable right, without the right to sell or grant sub licenses, (i) to use the Services and any other subscription services described in the Term Sheet, and (ii) to use the Documentation, each solely for the Customer’s internal business purposes on a subscription basis.
3.0 Documentations
The documentation for the Services, and related information, (“Documentation”) set out a description of the functionality and user instructions for the Services and the Supplier’s software, and may be amended by Supplier in its sole discretion from time to time. The Documentation is available at the website and in the APP.
4.0 Consultancy Services and Training
The Supplier will, subject to resource availability, provide assistance in the form of consultancy services and training whenever required. Cost and other terms will be confirmed in writing before supplying such services.
The Customer will allow only suitably trained personnel to use the Software.
5.0 Support
In order to request support, the Customer must contact the Supplier through the by phone or email with a detailed description of the issue. The Supplier is responsible for having personnel available that can give the Customer support for all products as described below. Support is delivered by phone and e-mail, and by connecting to the Customers servers when required. The Supplier will log all incidents.
Support is delivered from Norway with the following terms:
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Working hours: 8:00 to 16:00 CET/CEST, except weekends and Norwegian public holidays
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Language: Norwegian or English
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Phone: +47 40059886
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Email: support@medic-tool.com
Support is free of charge if Medic-Tool hasn’t provided the tools for the customers to do it themselves, i.e helpfiles and utilities. Errors or malfunctions reported under clause 6 is free of charge. Consultancy, report writing and Data manipulation is chargeable at our standard rates.
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Medic Tool – Target Software Defects SLA’s
Response Time is measured from the point that Medic Tool have received enough information from the Customer to assess correct Class of Fault, and applies to Working Hours only.
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Class of Fault​
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1
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2
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3
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4
Nature of Fault
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Critical System down. The entire Software is unavailable.
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Critical. A malfunction of Asolvi product such that a business critical process cannot be completed, or one that it is creating database inconsistency with no workaround
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Non-critical.Software function is affected, but does not create inconsistency in the database or prevent critical business process from being completed.The Fault has an impact on operations but work can continue via workaround.
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Minor. Minor Faults, mostly cosmetic in nature.
Response time
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Response within 2 hours
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Response within 4 hours
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Response within 16 hours
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Response within 1 week
6.0 New Software Versions
6.1
The Supplier shall, from time to time during the Subscription Period (as defined in clause 15), upgrade and/or update the Services. New software versions can contain new functionality as well as corrections of errors and malfunctions. The Customer shall accept any upgrades or updates and shall take such actions as may be required by the Supplier to ensure such update or upgrade is completed.
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6.2
Should the Customer need assistance with any changes resulting from the software upgrade, this will be subject to agreement and invoicing as set out in clause 4.
7.0 Errors or Malfunctions
Should the Customer wish to point out errors and malfunctions within the Software, the Customer must do so in writing and without delay directly to the Supplier. The Supplier will support releases that are up to 18 months old from the current date.
8.0 Supplier Warranty
8.1
Subject to clause 8.2, Supplier undertakes that the services it provides under this Agreement will be performed with reasonable skill and care.
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8.2
The Supplier:
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is not responsible for any non-conformance which is caused by use of the Services contrary to Supplier’s instructions,;
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does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, nor that the Documentation or any services provided under this Agreement will meet the Customer's requirements; and
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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 the Customer acknowledges that use of the Services or the provision of other services by the Supplier may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
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8.3
The Supplier shall use commercially reasonable endeavours to make the Services available twenty-four (24) hours a day, seven (7) days a week except for:
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planned maintenance to be carried out outside normal business hours, normally during the maintenance window of 10pm to 2am CET; and
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unscheduled maintenance to be performed outside normal business hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 normal business hours notice in advance.
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8.4
During the Subscription Period, Supplier will provide those error corrections/bug fixes, updates, upgrades, modifications and enhancements to the Services which it considers reasonable
9.0 Customer Obligations
The Customer shall:
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allow only suitably trained personnel to use the Services;
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abide by the Third Party Host’s Acceptable Use Policy, which is attached to this Agreement, as may be amended by the Third Party Host from time to time;
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comply with its obligations hereunder and all applicable laws and regulations with respect to its activities under this Agreement;
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not store, distribute or transmit any thing, material or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things through the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities; and
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be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Third Party Host’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
10.0 Customer Data
10.1
The Customer shall own all rights, title and interest in and to the data inputted into the information fields of the software or in connection with the Services by the Customer or by Supplier on the Customer’s behalf (“Customer Data”) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
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10.2
If Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Supplier shall be a data processor and the parties agree that the terms of the Data Processing Agreement shall apply.
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10.3
The Customer acknowledges that the Third Party Host shall follow its archiving procedures for Customer Data as set out in the Acceptable Use Policy, or as notified to the Customer, as may be amended by Third Party Host from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Third Party Host to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Third Party Host in accordance with its archiving procedure described above. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
11.0 Non-Disclosure
11.1
Confidential Information includes any information of a party that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information and any Customer Data. Confidential Information shall not include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party, which can be shown by written evidence.
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11.2
Subject to clause 11.3, each party shall hold the other’s Confidential Information in confidence and, unless required by law, shall not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than that required by this Agreement.
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11.3
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.
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11.4
The provisions of this clause 11 shall survive termination of this Agreement, however arising but shall cease to apply to any particular item of Confidential Information once it becomes public knowledge other than by any act or default of the non-disclosing party.
12.0 Price and Payment
During the Subscription Period, the Service Subscription Fees shall be as set out in the Term Sheet.
The Customer shall pay the Service Subscription Fees to Supplier in accordance with this clause 12.0
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12.1
Annual License Fee Price
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The annual amount payable for the right of use of the Software is the Software License Fee as described in the term sheet. Fees can be adjusted by written notice to reflect changes in the costs of maintaining and developing the Software.
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12.2
Payment schedule
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The Customer shall pay the Software License Fee according to the billing terms stated in the term sheet. The Supplier will send an invoice for The License Fee starting on the effective date of this Agreement. The Supplier will also provide a license key for right of use for the Software for the coming year.
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12.3
Payment terms, taxes
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All payments are due without deduction or set-off within 30 calendar days from the receipt of Supplier's invoice.
All prices shall be exclusive of any and all taxes on the deliverables under this Agreement, be it services or licenses or any other delivery, imposed by any domestic or foreign taxing authority such as applicable value-added, sales, use, excise, customs duties or other taxes, consumption, access, other tax, fees or surcharges (including, but not limited to regulatory fees or surcharges) ("Taxes").
Customer will pay all such Taxes required by law including those paid or payable by Supplier and any related interest and penalties.
If Customer is obliged under mandatory law to withhold any taxes on the deliverables from the payments, then Customer shall when paying for the deliverables also pay to Supplier an amount corresponding to the withheld. Supplier shall assist Customer, at Customer's cost, in relation to potential refunds of any withheld amounts.
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12.4
Payment default
Should the Customer fail to pay any outstanding amount according to the Agreement then an interest of 1 per cent per month on the outstanding accrues automatically, calculated at the beginning of each month.
Failure to comply with the payment terms set out in the Agreement entitles the Supplier to terminate the Agreement with thirty days’ notice. The right to termination is annulled upon payment of outstanding amounts.
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12.5
If the Supplier has not received payment within thirty (30) calendar days after the due date, without prejudice to any other rights and remedies available to the Supplier:
(a) The Supplier may suspend its provision of the Services and/or any other services agreed to be provided by Supplier while the invoice(s) concerned remain unpaid; and
(b) The Supplier reserves the right to charge interest on overdue amounts in accordance with The Late Payment of Commercial Debts (Interest) Act of the Norwegian Ministry of Finance, "Forsinkelsesrenten". Interest shall be calculated on a monthly basis.
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12.6
The Supplier shall be entitled to increase the Service Subscription Fees to reflect changes in the costs of maintaining and developing the Software upon prior notice to the Customer and shall be deemed to have been amended accordingly.
13.0 Indemnity and Limitations of Liability
Indemnity
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13.1
The Customer shall indemnify the Supplier and other members of the Medic-Tool AS against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer, its employees, independent contractors, or agents’s use of the Supplier’s software, Services, Documentation or other services provided under this Agreement.
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Limitation of liability
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13.2
Except as expressly provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
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13.3
The Supplier shall have no liability for results obtained from use of the Software and the services by the Customer, for conclusions drawn from such use or for any damage caused by any information, instruction or scripts provided by the Customer to the Supplier or for any actions taken by the Supplier at the Customer’s direction.
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13.4
Nothing in this Agreement excludes the liability of the Supplier for (i) death or personal injury caused by the Supplier’s negligence; (ii) fraud or fraudulent misrepresentation; or (ii) for any other liability that may not be limited or excluded as a matter of law.
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13.5
Subject to clause 13.4
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, business, goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and
(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance of this Agreement shall be limited to the total Software Subscription Fees paid by Customer in the year preceding the breach or negligent act in question; and
(c) the Services and/or other services or software provided by the Supplier under this Agreement, and the Documentation, are provided on an ‘as is’ basis.
14.0 Intellectual Property Rights
14.1
The Customer acknowledges and agrees that the Supplier and/or its licensors and suppliers own all copyright and any and all other intellectual property rights of whatever nature to the Software (including any improvements made thereto and the Documentation) and Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Supplier’s software, the Services, any services provided under this Agreement or any related documentation.
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14.2
The Supplier warrants that it has all the rights and licences in relation to the software and the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
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14.3
The Customer shall not:
(a) Use or duplicate, copy, modify, create derivative works from all or any portion of the Services, software (or any part thereof) or the Documentation for any purpose other than as specified in this Agreement or as may not be restricted by applicable law or make the Services or the Documentation available to unauthorized third parties;
(b) sublicense, assign, dispose or transfer the Services and/or any Documentation;
(c) distribute or represent that it is a reseller of or entitled to license or sub-license the Services; or
(d) attempt to reverse engineer, disassemble, decompile or otherwise reduce to human-perceivable form all or any part of the Services or change the Services or Documentation; or permit anyone to do so except as may be allowed by any applicable law; or
(e) use the Services or Documentation to provide services to third parties nor attempt to obtain, or assist third parties in obtaining, access to the Services or Documentation other than as provided under this clause 14.
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14.4
The Customer undertakes and warrants that it will take all reasonable precautions to safeguard the Services and all copies or any material relating thereto against unauthorized use in accordance with the terms of this Agreement.
15.0 Term and Terminations
15.1
This Agreement shall commence on the Effective Date and shall continue in force for the Initial Subscription Period, unless otherwise terminated as provided in this clause 15.
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15.2
This Agreement shall automatically renew for a further 12 month period (the “Renewal Period”) at the end of the Initial Subscription Period and at the end of each Renewal Period, unless either party gives the other party notice of termination, in writing, of at least three (3) calendar months before the end of the Initial Subscription Period or Renewal Period.
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15.3
The Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) calendar days after being notified in writing to make such payment; and/or
(b) there is a change of control of the Customer, where control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
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15.4
This Agreement may also be terminated immediately by either party serving notice in writing on the other party:
(a) an administrator, administrative receiver, receiver or manager, liquidator, provisional liquidator or similar officer is appointed in respect of the whole or any part of the other party’s assets (save for the purposes of a solvent reconstruction or amalgamation), and/or a winding up petition is issued against a party; or if a party proposes to enter or enters into any composition or arrangement with its creditors generally or any class of creditors; or the other party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due; or any event occurs, or proceeding is taken, with respect to the other party in any other jurisdiction that has an equivalent or similar effect to any of the events mentioned in this clause above; or the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(b) if the other party commits a material breach of any part of this Agreement, and if the breach is capable of remedy, that other party has failed to remedy within thirty (30) days after being notified in writing to do so; and
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it.
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15.5
The Supplier may suspend the Services without liability if the Third Party Host suspends its hosting service on the basis that:
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it reasonably believes that its servers are being used in violation of its agreement with the Supplier
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there is an attack on the Supplier’s or the Customer’s computing equipment and/or software potentially negatively impacting the Third Party Host’s servers, or there is another event for which the Third Party Host reasonably believes that the suspension of its hosting service is necessary to protect its network or its other customers; or
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it is required by law.
The Supplier will give the Customer as much advance notice of such a suspension as possible, up to twelve (12) hours unless the Third Party Host determines in its reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect its or its other customers from imminent and significant operational or security risk.
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15.6
If the Third Party Host ceases permanently to provide its hosting service for whatever reason, the Supplier will use all reasonable endeavours to transfer its hosting services to a different Third Party Host without interruption of the Services. However, if the Supplier is unable to do so, it may terminate the Services and this Agreement on giving the Customer as much notice as reasonably practicable, but without liability to the Customer.
16.0 Consequences of Termination
16.1
The termination of this Agreement shall be without prejudice to the rights, remedies, obligations or liabilities of parties that have accrued up to the date of such expiry or termination.
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16.2
On termination of this Agreement, the Customer will not be entitled to any refund or compensation for any loss or damage resulting from Supplier terminating or suspending the provisions of services in accordance with this Agreement.
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16.3
On termination of this Agreement:
(a) the right to use the Services and Documentation granted to the Customer under this Agreement shall immediately terminate;
(b) the Supplier shall be entitled to destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) calendar days after termination of this Agreement, a written request for the then most recent back-up of the Customer Data. Supplier shall deliver the back-up within such period as may be agreed, provided that the Customer has paid all outstanding Services Subscription Fees and all reasonable expenses incurred by Supplier in returning or disposing of Customer Data.
17.0 General
17.1
Force Majeure
The Supplier shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier, the Third Party Host or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six (6) months, the party not affected may terminate this Agreement by giving thirty (30) calendar days written notice to the other party.
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17.2
Assignment
The Customer may not assign, sub-contract, charge or otherwise transfer or deal in any of its rights or obligations under this Agreement without the Supplier’s prior written consent. The Supplier is entitled to assign this Agreement to any affiliate of the Supplier.
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17.3
This Agreement constitutes the entire agreement between the parties and supersedes any agreements, understandings, warranties, representations and promises whether written or oral made or existing between the Customer and the Supplier relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
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17.4
Except as otherwise provided herein no waiver, addition, amendment to or modification of this Agreement shall be effective unless it is in writing and, in the case of any addition, amendment or modification, signed by or on behalf of both parties.
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17.5
If any of the provision of this Agreement is judged to be invalid, illegal or unenforceable, the other provisions shall remain in full force and effect.
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17.6
The Supplier’s group companies and Third Party Host suppliers may enforce the terms of this Agreement in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999, but nothing in this Agreement confers any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
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17.7
Notices
Any notice given under this Agreement shall be in writing and delivered to the relevant party’s contacts identified in the Term Sheet, or otherwise notified to the other party in writing, at its address by hand, pre-paid first-class post or recorded delivery post, or by e-mail (provided that a copy and copy of any relevant transaction report is given by hand or sent by pre-paid first-class post or recorded delivery post within twenty-four (24) hours of transmission).
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17.8
Choice of law and jurisdiction
The parties hereby irrevocably consent and agree that any legal action, suit or proceeding with respect to any obligation, liability or other matter under or arising out of or in connection with this Agreement shall, unless amicably settled between the parties, be finally settled by arbitration according to the rules of the United Nations Commission on International Trade Law (UNCITRAL) as in effect on the date the parties are signing this Agreement ("Rules") by three arbitrators in accordance with said Rules. The arbitration proceedings and the award shall be confidential and the parties shall agree on such confidentiality in each specific case. The seat of arbitration shall be Oslo, Norway to the exclusion of all other courts anywhere else. The procedural laws of Norway shall apply where the Rules are silent. The arbitration proceedings shall be conducted in English. This clause shall not preclude a party from obtaining interim or injunctive relief on an immediate basis from a court of competent jurisdiction.