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“Add-on Subscriptions” means any additional Services ordered by Customer from time to time via e-mail or otherwise after a Subscription Form is executed. Each Add-on Subscription is hereby incorporated by reference into this Agreement.
“Agreement” means these subscription terms and any Subscription Forms and Add-on Subscriptions as ordered from Customer from time to time.
“Ardoq” means Ardoq AS and affiliates.
“Ardoq Fees” shall have meaning set out in section 3.1.
“Confidential Information” shall have the meaning set out in section 9.1.
“Customer Data” means proprietary business data relating to Customer’s business, including data and information (i) furnished to Ardoq in the course of or incidental to performing the Services hereunder and (ii) generated by Customer’s use of the Services. Ardoq agrees to treat Customer Data as confidential in accordance with Section 9 (Confidentiality).
“Data Processing Agreement” means the executed version of the Data Processing Agreement attached hereto as Appendix A.
“Documentation” means, collectively, Ardoq’s user manuals and other documentation relating to the Services provided by Ardoq, as updated from time to time.
“Force Majeure” means an event caused by conditions beyond the reasonable control of a party, including governmental action, war, acts of public enemies, strikes or other labor disturbances, civil or military authority, fires, floods, or other natural calamities, acts of God, telecommunications failures, electrical outages, any service failure or disruption caused by third parties, service providers or systems, severe network outages in co-location site networks, error in the coding of electronic files or any causes of like or different kind beyond the reasonable control of such party.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, whether registered or unregistered, and any and all other similar proprietary rights, as well as any and all applications, renewals, extensions, divisionals, continuations, restorations and reinstatements thereof, now or hereafter in force and effect worldwide.
“Subscription Form” means the Ardoq order form executed by the parties setting forth the specific Services to be provided to Customer pursuant to this Agreement. Each Subscription Form is hereby incorporated by reference into this Agreement.
“Service Level Agreement” or “SLA” means the service level agreement attached hereto as Appendix B.
“Service Levels” shall have the meaning set out in section 4.1.
“Services” means the Ardoq SaaS services set forth in the applicable Subscription Form executed by the parties and if applicable, and any Add-on Subscriptions.
“User” means any employee of Customer who is authorized to access and use the Services in accordance with this Agreement.
2.1 Subject to the terms and conditions of this Agreement, and provided that all Ardoq Fees due and payable under this Agreement have been paid by Customer in a timely manner to Ardoq, Ardoq grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Term to remotely access and use the Services only as provided by Ardoq. Customer will only disclose portions of the Services or provide access to the Services to any non-Customer personnel or entity on a need to know basis.
3.1 Ardoq Fees. Ardoq fees for the Services, including onboarding fees, subscription fees, consulting fees and all other related fees and expenses, as applicable (collectively, “Ardoq Fees”) are set forth in the Subscription Form and in any Add-on Subscriptions, if any. In exchange for receiving the Services, Customer agrees to pay all Ardoq Fees in accordance with this Agreement. Customer’s payment obligations are non-cancellable and all Ardoq Fees paid are non-refundable. For the avoidance of doubt, if Customer provides notice of non-renewal within the time limits set out in section 10.2 below, then any subscription fees for the renewal term will not be due.
3.2 Taxes. All prices are exclusive of any sales tax, excise tax, value added tax, import duty or other tax applicable to the sale of the Services. Such taxes, when applicable, shall be paid by Customer unless Customer provides a proper tax exemption certificate.
3.3 Invoicing; Overdue Payments. Ardoq will issue invoices to Customer at the frequency specified in the Subscription Form. Unless otherwise stated in the Subscription Form, invoiced Ardoq Fees are payable within 30 days of the invoice date. If payments by Customer that are more than 30 (thirty) days overdue, Ardoq is entitled to interest in accordance with the Norwegian Act relating to Interest on Overdue Payments.
4.1 Ardoq will use commercially reasonable efforts to provide the Services substantially in accordance with the service levels (“Service Levels”) set forth in the applicable SLA attached hereto as Appendix B.
4.2 Upgrades. At its sole discretion, Ardoq may, from time to time, revise or enhance the Services, in the form of new versions, system upgrades, enhancements, software patches or otherwise for the purpose of enhancing or improving the Services currently being provided to all customers (collectively, “Upgrades”). Ardoq shall provide Customer with access to such Upgrades and copies of any new Documentation as the same shall become available.
5.1 Customer will cooperate with Ardoq in implementing the Services and provide access to the necessary resources in order for Ardoq to enable Customer’s use of the Services.
5.2 Users. Customer shall permit only Users to use the Services, and Users will need to accept Ardoq’s End User Terms of Service in order to use the Services.
5.3 Restrictions on Use. Customer shall not (i) modify, translate, reverse engineer, decompile or disassemble any of the Services, or otherwise attempt to derive source code or create derivative works from the Services; (ii) circumvent any encrypted data or gain access to more materials or data than was licensed or use the Services in any manner which violates this Agreement and/or any applicable law; (iii) remove from the Services, or alter, any of Ardoq's or its suppliers' trademarks, trade names, logos, patent or copyright notices, or other notices or markings; and (iv) distribute, sublicense or otherwise transfer any right in and to the Services to others.
6.1 In providing the Services, Ardoq may commission subcontractors or other third parties to provide some (but not all or substantially all) of the Services. Ardoq shall be liable for the acts and omissions of its subcontractors to the same extent Ardoq would be liable if performing the services of each subcontractors directly under the terms of this Agreement.
7.1 Ownership of Customer Data. Customer Data is and shall remain the exclusive property of Customer. Customer has sole responsibility for Customer Data and its intellectual property ownership and right to use. Customer Data shall be kept confidential by Ardoq during the Term and following the expiration or termination of this Agreement, pursuant to Section 9.
7.2 License to Customer Data. Customer hereby grants to Ardoq a limited, non-exclusive, non-transferable license during the Term to (i) receive, retrieve, process, use and transmit any Customer Data necessary or reasonably desirable to perform the Services; and (ii) use, copy, manipulate and store any Customer Data that will be archived, stored or otherwise transmitted in connection with the Services.
7.3 Data Processing Agreement. Ardoq shall implement and maintain appropriate technical and organizational measures, internal controls, and information security routines as set forth in the DPA to protect Customer Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction, as further described in the DPA attached hereto.
Apart from the limited licenses granted in Sections 2 and 7, each party will own and will retain all of its respective Intellectual Property Rights. Customer agrees and acknowledges that Ardoq owns and shall retain at all times all right, title and interest in and to the Services and all Intellectual Property Rights associated therewith. Each party retains all other rights not expressly granted in this Agreement.
9.1 Confidential Information. “Confidential Information” means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the receiving party, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; (vi) is approved for release (and only to the extent so approved) by the disclosing party; or (vii) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
9.2 Non-use and Non-disclosure. The terms of this Agreement, and any other Confidential Information exchanged pursuant to this Agreement (including the Services), will be considered Confidential Information. Neither party shall use or disclose any Confidential Information of the other party for any purpose except in furtherance of this Agreement. The receiving party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and/or unauthorized use of the Confidential Information of the disclosing party.
9.3 Survival and Remedies. The obligations of each receiving party under this Section 9 shall survive for three (3) years after the termination of the Agreement. Each party agrees that any violation or threatened violation of this Section 9 may cause irreparable injury to the disclosing party, entitling the disclosing party to seek injunctive relief in addition to all legal remedies.
10.1 Initial Term. The initial term of this Agreement (the “Initial Term”) shall commence on the Effective Date and shall continue for the period set forth in the applicable Subscription Form, unless terminated earlier in accordance with section 10.3.
10.2 Extended Term. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods as specified in the Subscription Form (each a “Renewal Term”), unless: (i) either party provides written notice of its intention not to renew at least sixty (60) calendar days prior to the expiration of the then-current term; or (ii) the Agreement is terminated earlier in accordance with this Agreement. As used herein, “Term” shall include the Initial Term and any Renewal Term.
10.3 Term and Termination. Notwithstanding the foregoing, this Agreement may be terminated by either party:
(i) upon thirty (30) calendar days prior written notice, if the other party shall have materially breached its obligations hereunder and shall have failed to cure such breach within such thirty (30) calendar days’ notice period; and
(ii) immediately, if the other party takes or suffers any action for insolvency in any jurisdiction.
10.4 Effect upon Termination. Upon expiration or termination of this Agreement for any reason, (i) all licenses and rights to the Services shall cease; (ii) Customer shall immediately cease all use of the Services and return to or destroy, at Ardoq’s sole option and request, all tangible materials and all copies thereof, in whatever media, then in Customer’s possession or control, containing any Confidential Information of Ardoq; (iii) Ardoq shall destroy all Customer Data in accordance with the DPA; (iv) each party shall take such other actions as the other party may reasonably request to ensure that no Confidential Information remains in its or any of its employees’ possession or control; and (v) any and all undisputed fees owed by Customer to Ardoq hereunder shall become immediately due and payable to Ardoq.
10.5 Suspension of Services. Ardoq reserves the right, in its sole discretion, to suspend the Services following Customer’s breach of any of its obligations under the Agreement (including failure to pay) and, if such breach is capable of being cured, a failure to cure such breach within thirty (30) calendar days following receipt of written notice thereof, until such time as the breach has been cured by Customer.
11.1 Each party hereby represents and warrants that (i) the representing party has full power and authority to execute, deliver and perform this Agreement, (ii) this Agreement has been duly and validly executed and delivered by the representing party and constitutes the legal, valid and binding obligation of the representing party, enforceable against it in accordance with its terms and (iii) to its knowledge, its website and services do not and shall not promote illegal activity.
11.2 Third Party Products and Services. Ardoq makes no representation or warranty, express or implied, as to any third party hardware, software, products or services included with the Services.
CERTAIN PARTS OF THE SERVICES INCLUDE THIRD-PARTY CODE LICENSED TO ARDOQ FOR USE AND REDISTRIBUTION UNDER OPEN-SOURCE LICENSES. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND ANY RELATED SOFTWARE OR SERVICES LICENSED OR OTHERWISE PROVIDED TO CUSTOMER HEREUNDER, ARE PROVIDED “AS IS,” AND CUSTOMER ASSUMES ALL RISKS OF THE USE, QUALITY, AND PERFORMANCE THEREOF, AND THE ACCURACY AND COMPLETENESS OF ANY DATA USED BY CUSTOMER IN CONNECTION THEREWITH. ARDOQ DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, RELATING IN ANY WAY TO THE SERVICES AND ANY RELATED SOFTWARE OR SERVICES LICENSED OR OTHERWISE PROVIDED TO CUSTOMER HEREUNDER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. ARDOQ DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SERVICES. IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INCIDENTAL, ENHANCED OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL ARDOQ’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, THE SLA AND THE DPA FROM ANY CAUSE EXCEED THE AMOUNT OF THE ARDOQ FEES RECEIVED BY ARDOQ DURING THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO DAMAGES ATTRIBUTABLE TO BREACHES OF SECTION 9 (CONFIDENTIALITY) OR TO DAMAGES ATTRIBUTABLE TO GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
13.1 Each party will defend, indemnify, and hold harmless the other party and its affiliates, and their respective directors, officers, employees, agents, successors and assigns, from and against any loss, damage, settlement, cost, expense, and any other liability (including reasonable outside attorneys’ fees and costs) (collectively, “Losses”) related to or arising out of any third party allegation, claim, lawsuit, or proceeding (a “Claim”) based on any allegation that, if true, would constitute a breach of any representation, warranty, covenant or obligation under this Agreement by the indemnifying party.
13.2 By Ardoq. Ardoq agrees to defend, indemnify and hold harmless Customer and its officers, directors, employees, and agents, from and against any third-party claims and actions, and any Losses arising out of (i) such third party Claims that the Services infringe its Intellectual Property Rights; or (ii) Ardoq’s breach of its representations and warranties provided in Section 11. In the event of an alleged infringement, Ardoq may, at its sole discretion either (a) procure for Customer the right to continue to use the applicable Services as contemplated hereunder, or (b) replace or modify the applicable Services and/or modify its use to make its use hereunder non-infringing. If Ardoq reasonably determines that the foregoing options are not commercially practicable, Ardoq may terminate this Agreement. The rights granted to Customer under this Section shall be Customer’s sole and exclusive remedy for any alleged infringement with respect to the Services.
13.3 Exceptions. Notwithstanding anything contained herein to the contrary, Ardoq will have no liability to the Customer under this Section if any alleged infringement or claim thereof arises from (i) use of the Services in any manner not contemplated by this Agreement, or (ii) use of other than the most current version of the Services or the Documentation as provided by Ardoq if such alleged infringement would have been prevented by the use of the most current version.
13.4 By Customer. Customer agrees to defend, indemnify and hold harmless Ardoq and its officers, directors, employees, and agents, from and against any third-party claims and actions, and any Losses arising out of such third party Claims arising from or related to Customer’s (i) failure to comply with applicable laws or regulations in conducting its business in connection with the Services; or (ii) breach of its representations and warranties provided in Section 11.
14.1 Promotional Materials. Subject to Customer’s prior written approval, Ardoq may list Customer and its associated logo on Ardoq’s website and in Ardoq’s promotional material for purposes of featuring Customer as a client of the Services.
14.2 Assignment. This Agreement may not be assigned by either party without the prior written consent of the non-assigning party, except that no such consent is required in the context of merger, acquisition or sale of all or substantially all the assigning party’s stock or assets provided that such assigning party provides advance written notice thereof to the non-assigning party. Subject to the foregoing, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the parties’ respective permitted successors and assigns.
14.3 Force Majeure. The failure of either party to perform any obligation otherwise due (other than the obligation to pay any fee) as a result of an event of Force Majeure is excused for so long as said cause exists.
14.4 Entire Agreement. This Agreement, including the Subscription Form, SLA, the DPA and all schedules thereto, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency between the provisions of this Agreement and the Subscription Form, the terms of the Subscription Form shall prevail.
14.5 Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity or enforceability of any or all of the remaining portions thereof.
14.6 Amendment. No amendment or modification of these subscription terms shall be valid or binding upon the parties unless in writing and signed by an officer of each party.
14.7 Notices. All notices and other communications required or permitted by this Agreement or by law shall be in writing by e-mail or mail and shall be considered delivered effective (i) if delivered by hand, sent by certified or registered mail or sent by an overnight courier service, when received; and (ii) if sent by electronic mail, when received at the opening of business on the next business day for the recipient.
14.8 Survival of Certain Provisions. Sections 1, 8, 12, 13 and 14 hereof shall survive termination of this Agreement. Section 9 shall survive for a period of three (3) years upon termination of this Agreement.
14.9 Governing Law; Consent to Jurisdiction. This Agreement and all matters arising hereunder or in connection herewith shall be governed by, interpreted under, and construed and enforced in accordance with, Norwegian laws, without regard to conflicts of law principles. Each of the parties hereby irrevocably consents and agrees that any legal action or proceedings shall be brought in the Norwegian courts located in Oslo.