General Terms of Use
General Terms of Use for Protectoria1. Definitions
"Agreement" means an Order duly signed by MM and Customer, together with these Terms;
"Charges" means fees and charges payable by Customer as set out in an relevant Order;
“Customer” means the Customer as defined in the relevant Order;
“Customer Data” means all electronic data or information submitted by Customer to the Service;
"Intellectual Property Rights" means all patents, copyright, design rights, domain names, registered designs, trade and service marks (registered and unregistered), rights in know-how, rights in relation to databases, trade secrets, rights in confidential information and all other intellectual property rights throughout the world including:
(a) all registrations and pending registrations relating to any such rights and the benefit of any pending applications for any such registrations; and
(b) all reversions, extensions and renewals of any such rights
"Order" means an order document (electronic or in paper) for purchases of MM Services placed by Customer and accepted by MM which specifically incorporates these Terms;
“Service” means the Protectoria Messaging Service as described in the Service Definition and provided by MM via the web site www.protectoria.com. The Service includes software and user documentation which is made available to the Customer on the website.
“Users” means individuals who are authorized by Customer to use the Service, for whom access to the Service have been purchased, and who have been supplied user identifications and passwords by Customer or by MM.
“MM” means the legal entity Message Management AS, business registration number 988415944. MM is the owner and provider of the Service.
2. Application of terms
These Terms shall apply to all Orders between MM and Customer (“the Parties”) and shall govern the relationship of the Parties in connection with the performance of the Services. Customer agrees that its purchase of Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by MM or third party providers with respect to future functionality or features. The parties may however agree express additions, amendments or modifications of these Terms but only where these are in writing and signed by MM in the relevant Order.
3. Services
3.1 MM responsibilities
MM shall provide the Services described in the Order and Service Definition to Customer, using reasonable endeavours to meet any timescales and other specifications specifically referred to in the relevant Order and Service Definition.
MM does not warrant that the Services will meet Customer's present or future requirements or that the Services will be available to Customer without interruption, fault or error. In particular, MM may at times need to suspend and/or modify the Services temporarily for maintenance purposes. MM will use reasonable endeavours to keep any downtime and resulting disruption to a minimum and shall use reasonable endeavours to notify Customer wherever possible in advance of such work commencing.
3.2 Customer responsibilities
Customer shall be responsible for making all arrangements necessary for it to access and utilize the Services through an internet connection and shall ensure it has in place appropriate hardware, software and security measures to receive and use such Services (such hardware, software and security measures shall at all times meet the minimum specifications as described in the Service Definition or as notified by MM to Customer from time to time).
Customer shall be responsible for all use of the Service that are accessed trough its Users (Usernames, passwords PIN-codes etc. ) and that the Services solely shall be used for the Customers internal business purposes as contemplated by this Agreement. The Customer shall at all time be responsible for the correctness of all information including Customer Data that are sent, submitted and/or uploaded to the Service or to MM.
The Customer shall prevent unauthorized access to, or use of, the Service, and notify MM promptly of any such unauthorized access or use. The Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send, submit, upload Customer Data in violation of applicable laws and regulations; (iii) send submit or upload spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iv) send, submit or upload any material infected by virus or any other malignant code which may be damaging for MM or the systems the Service is run on or (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein.
Customer shall at all times assure and be responsibele for the Customers use of the Service being in compliance with all applicable laws including without limitation all applicable encryption and data protection laws and regulations within the terrotories the Service is used.
4. License
Customer acknowledges that any and all of the Intellectual Property Rights used or subsisting in or in connection with the Services are and shall remain the sole property of MM or its third party providers.
Subject to the terms in the EULA in Appendix 1 MM hereby grants to Customer a non-exclusive, non-transferable licence to use the Intellectual Property Rights referred to above for the sole purpose of receiving the Services during the Term but subject always to the following limitations:
(a) Customer shall use the Services solely for its own internal business purposes and shall not resell the Service in whole or part nor modify, enhance, reverse engineer or decompile any software provided as part of the Service without the express prior written consent of MM or as expressly permitted by law; and
(b) Customer shall use the Services in strict compliance with the specifications in the relevant Order and Service Definition.
Customer acknowledges that if new Intellectual Property Rights are created in performance or as a result of the Services, such Intellectual Property Rights shall (unless expressly agreed in writing by MM) belong to MM.
5. Security, Operation and Support
MM is focused on security and strives to attain a high level of security for its Services. MM works proactively to secure the systems in relation to existing and possible future weaknesses. Please refer to the Service Definition for a description of security, operation and support.
6. User name and passwords
MM will issue either a user name and/or password, PIN-codes to (i) the Customer’s administrator who is authorized to assign user names, passwords PIN-codes to the Customer’s authorized Users, or, (ii) to each individual User with the Customer. MM may demand changes in user names and passwords for security and system technical reasons or where there are grounds for suspicion of default of confidentiality.
Customer shall be responsible for protecting the safekeeping of such user names, passwords PIN-codes against any unauthorized use, or disclosure to persons who are not entitled to use the Services in accordance with this Agreement. Customer shall immediately notify MM if it becomes aware of any unauthorized use or disclosure of a password or PIN-code . Until such notice is given MM shall be entitled to assume that all acts or dealings done in connection with the Services by a person who uses a password that has been provided to Customer constitutes an act or dealing by Customer.
7. Data Protection
During the course of performing the Services, MM may process personal data regarding individuals whose details have been made available to MM by Customer (whether directly or indirectly).
Customer acknowledges that when processing such data MM will be acting as a data processor on behalf of Customer and accordingly MM shall:
(a) only process such data in accordance with instructions received from Customer regarding the Services to be provided under this Agreement, or as otherwise required by law; and
(b) implement appropriate technical and organisational measures to protect such data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.
Subject to the foregoing, Customer warrants that it has obtained all necessary consents and complied with all applicable legal requirements (whether under privacy, confidentiality or data protection laws or otherwise) with respect to the processing of data by MM under this Agreement and that it has and shall comply with all applicable laws and regulations as appropriate to enable the lawful receipt and use of the Services in accordance with this Agreement.
8. Customer Data - Databases
As between MM and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. MM shall in no event use or access Customer Data, except to facilitate the Service or respond to service or technical problems or at Customer's request.
The Customer is responsible for the Customer’s Data not infringing the copyright, ownership or proprietary rights of any third party. The Customer shall indemnify MM against each and all claims from third parties regarding legal defects in the Customer Data. Customer is responsible for taking the necessary steps to back up Customer’s Data
MM retains copyright and ownership rights to those data bases which are generated by MM, including but not limited to addressing information provided by Customer, and are necessary for MM to facilitate the Service and to invoice the Customer.
9. Charges
Charges for the Service will be invoiced in advance and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, Charges are due net 15 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information on the Service. Except as otherwise specified herein or in an Order, all Charges paid are non-refundable, and the amount of access to the Service or number of subscriptions purchased cannot be decreased during the relevant access/subscription term stated herein or in the relevant Order. Fees for subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the subscription term. Charges are exclusive of all current and future taxes and fees, all of which Customer will be responsible for and will pay in full.
Failure to comply with these payment terms shall entitle MM to :
(a) charge interest on the outstanding amount at the maximum rate allowed by the Norwegian Interest on late payment Act, from the due date until the outstanding invoiced price or outstanding part thereof is paid;
(b) suspend performance of Services.
10. Confidentiality
The Parties, including all employees and persons who act on behalf of the Parties in connection with the performance of the agreement, shall retain full secrecy regarding all confidential information and materials which they acquire knowledge of in connection with the performance of the agreement. Without placing any limitations on the aforementioned, this professional secrecy also includes information regarding technical solutions, program design, build-up and structure, methods and techniques, anyone’s personal information, prices and price structures, information which may damage one of the Parties or which may be exploited by third parties in business activity, or information regarding operating and business affairs which may moreover be of competitive importance to keep secret for the Party the information concerns.
This confidentiality clause shall remain in full force and effect also after the termination of this agreement and employees or others who resign from their positions shall be instructed to maintain secrecy also following resignation or termination of their employment regarding the matters stated above.
If either Party is compelled by law to disclose Confidential Information of the other Party, it shall provide the Discl Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
11. Liability & indemnification
MM warrants that the company possesses the necessary rights to exploit the Intellectual Property Rights licensed or made available to Customer under this Agreement ("IPR")
MM shall indemnify Customer for any infringement of any of the or for any claim as to the validity of the IPR by any third party provided that Customer shall at all times indemnify MM in respect of any infringement of any IPR arising as a result of use by Customer of such IPR outside the terms of this Agreement. Customer agrees to allow MM (or its licensors) to have control of any proceedings arising as a result of any infringement, threatened infringement or claim relating to the IPR. Customer agrees that it will make no admission as to liability and that it will not agree to any settlement or compromise of any action without MM's consent (or that of MM's licensor) as the case may be.
Customer shall for the event of any possible claim, without undue delay, notify MM in writing and at MM's request and cost, offer such other assistance as MM may reasonably request in relation to any proceedings to protect MM's rights and interests, including those relating to the IPR. Any recovery obtained from such proceedings shall accrue solely for MM's benefit although MM will reimburse to Customer any costs reasonably incurred by Customer in assisting with such proceedings.
If an infringement, threatened infringement or claim occurs in relation to the Services, or if MM considers that such a claim is likely to occur MM shall have the right at its sole discretion to either: (i)procure for Customer the right or licence to use of the Services free of the infringement claim; or (ii) replace or modify the Services to make it non-infringing; or (iii)terminate that part of the Services which relates to the infringement (or potential infringement) and return any Charges paid by Customer in advance for that part of the Services in full and final settlement of any claims in respect thereof; or (iv)if none of these options are reasonably practicable, terminate this Agreement and return any Charges paid by Customer in advance for the affected Services in full and final settlement.
Customer shall indemnify MM against all liabilites, claims and expenses arising as a result of Customer’s breach in respect of clauses 6 (User name and passwords), 7 (Data Protection). 8 (Customer Data – Databases) and 10 (Confidentiality).
12. Limitation of Liability.
Neither party shall have any liability to the other party for indirect and consequential loss or damage, including but not limited to loss or damage to data or to other equipment or property (whether or not the same may be in MM's care, custody or control) or for loss of profit, business, revenue, goodwill or anticipated savings.
Unless otherwise expressly stated in this agreement shall MMs total liability for loss or damage arising in connection with performance of its obligations under this Agreement be limited to the aggregate Charges paid by Customer to MMin the twelve months preceding the date of the relevant breach and in any event to the aggregate Charges paid by Customer and received by MM during the term of this Agreement.
13. Term & Termination
13.1 Term
13.1.1 Pre paid access ("Pay-as-you-go")
Pre paid access commence upon MM’s receipt of the agreed Charges in accordance with the relevant Order and continues until such prepaid User access to the Service has expired or been terminated.
13.1.2 User Subscriptions ("Pay-per-user")
User subscriptions commence on the start date specified in the relevant Order and continue for period of one (1) year unless otherwise stated in the relevant Order. User subscriptions shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term.
13.2 Termination
Either party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or any event analogous to the foregoing occurs in relation to that other party in any jurisdiction. Upon any termination for cause by Customer, MM shall refund Customer any prepaid fees covering the remainder of the subscription term after the date of termination.
MM may terminate this Agreement if the Customer has not accessed the Service for a period of one year after the last use of the Service.
13.3 Effects of termination
Immediately following termination of this Agreement Customer shall cease using the Services and any password and other access details provided in relation to the Services and, if MM so requires, delete from all computer hardware and storage media and otherwise destroy copies of all software, documentation and other material (including Confidential Information) that MM has made available to Customer.
Customer shall warrant that it has done these acts within thirty (30) days of termination or the date on which MM requires Customer to delete or destroy such items (as applicable). Customer shall also pay to MM any Charges that are outstanding.
All copies of Customer Data stored by MM shall be returned to the Customer at the Customer’s expense and in a commonly recognized file format if so desired by the Customer. If the Customer has not notified MM that the Customer’s Data is to be returned within 14 days of termination of this agreement, MM may delete or by other means destroy the Customer Data without further notice.
Termination shall not affect any of the Terms expressed to survive or operate in the event of the termination and shall not prejudice the rights of either party in respect of any breach or in respect of any monies payable for any period prior to termination.
14. Force Majeure
If an extraordinary situation should arise which is outside the control of the Parties and which renders impossible fulfilment of liabilities in accordance with this agreement, and which according to standard purchase law regulations is considered as force majeure, the other Party shall be notified to this effect without undue delay. The liabilities of the affected Party are suspended for as long as the extraordinary situation endures. The other Party’s services in return are suspended during the same period of time.
The other Party can, in force majeure situations, only terminate the agreement with the consent of the affected Party or if the situation last or is assumed to last for more than 90 days, estimated from the point in time when the situation occurred, and then only with 15 days’ written notice.
15. Assignment
This Agreement shall not be assigned by Customer without the prior written consent of MM. MM reserves the right to assign any or all of its rights and liabilities under this Agreement as part of a bona fide merger, reorganisation or sale of its business.
16. Severability
In the event that any part of this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
17. Notices
All notices to or by the respective parties pursuant to the Agreement shall be in writing or by protected e-mail (sent through the Service) and shall be deemed to have been duly given when delivered by hand, posted by recorded delivery or sent by protected e-mail to the other party. Either party may, by a notice given in accordance with this Clause 17, notify the other party of a change to its postal or e-mail address..
18. Disputes
In the event of a dispute arising between the Parties regarding the interpretation or legal effect of the agreement, the dispute shall primarily be attempted resolved by negotiations. If such negotiations are not successful within two months, each of the Parties may then demand that the dispute be brought before an ordinary court of law.
19. Choice of Law
The parties hereby agree that the Agreement shall be construed in accordance with the laws of Norway. Customer accepts the exclusive jurisdiction of the courts of Oslo tingrett. MM reserves the right to bring proceedings and enforce the Agreement in any jurisdiction.
APPENDIX 1 – END USER LICENSE AGREEMENT
Before installing this Software, you should carefully read the following end user license agreement (“EULA”) that applies to the software issued by MM and used in connection with the Service Protectoria. Installing this Software indicates your acceptance of the EULA and establishes a binding agreement between you as the person/entity licensing the software (the “Licensee”) and Message Management AS (the “Licensor”), [ ] Oslo, Norway.
1. Equipment of Use: The single computer or PC owned, leased or otherwise controlled by Licensee on which the Software is initially installed and for which a License Password has been or will be issued.
2. License: Licensor grants Licensee a non-exclusive, non-transferable license to use the Software for the sole purpose of using it connection with the Protectoria Services provided by Message Management and any other applications that may be explicitly provided by the Licensor
3. IP Rights: Licensee acknowledges and agrees that, any and all IP Rights to or arising from the Protectoria Software are and shall remain the exclusive property of MM and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in Licensee . Licensee are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
4. Confidentiality: The Software is a MM trade secret and is proprietary to Licensor. The Licensee, including their employees and all others that act on behalf of the party, shall during and after the completion or termination of this Agreement maintain in strict confidence all confidential information they receive or obtain in performance of this Agreement. For purposes of this Agreement "confidential information" means any, without limitation, information relating to know how, technical solutions, specifications, software, procedures and all other competitively technical or business information supplied by Licensor and which is designated as confidential by such other party or which is by nature clearly confidential.
5. Warranty: Licensor warrants to Licensee that: (a) it is the proprietor of the Software, and has all the rights to exploit the Software in the Territory in the form in which it is made available to Licensee; (b) it has the full power to enter into this Agreement and to authorise the licensing and use of the Software in connection with the Protectoria Services; and (c) use of the Software in Connection with the Protectoria Service does not infringe proprietary or copyrights of any third party or any obligations under any license or any duty of confidentiality owed to a third party, and that Licensor is not aware of any facts upon which such a claim for infringement could be based.. Except as expressly provided herein, the Software is provided "as is". Licensor makes no other warranties, either express or implied, regarding the Software, its merchantability or its fitness for any particular purpose. Licensor does not warrant that use of the Software will be uninterrupted or error free or that the Software will operate with the combination of hardware and software selected by Licensee or the Licensee’s clients (end-users). For the avoidance of doubt, Licensor shall not be responsible for (i) any failure of the Software if such a failure is attributable to Licensee's or any third party's services, software or equipment not provided and/or developed by Licensor under or pursuant to this Agreement; (ii) any changes, modifications, updates, alterations or enhancements to the Software; any inaccuracies, delays, interruptions, or errors occurring as a result of incorrect data or data which does not conform to required input formats; (iii)and/or any changes, modifications, updates, alterations or enhancements to, and any inaccuracies, delays, interruptions or errors caused by, any software, equipment or services.
Licensee warrants to Licensor that: (a) it has the full power to enter into this Agreement ; and (b) it will not alter or Modify the Software or any Documentation in any way nor permit them to be altered
Neither party shall, unless it is expressly written into this Agreement, be liable to the other party for any indirect or consequent loss, damage, loss of revenues or expense of any kind whatsoever arising out of or in connection with the Protectoria Services and this Agreement whether sustained by the other party or any other person. If either party violates any intellectual property right of the other party, the infringing party shall be obliged to indemnify the other party from any expenses or losses demonstrably arising from the infringement. Nothing in this Agreement shall exclude liability for death or personal injury or for damage to property resulting from gross negligence of party, its employees, agents or its sub-contractors.
In order to maintain the security of Licensor’s software, protect its staff and detect fraud and other crimes, Licensor reserves the right to monitor all internet communications, including web and email traffic, into and out of its domains. Monitoring may include checks for, but not limited to; viruses and other malignant code, criminal activity, and use which is unauthorised as being in breach of the EULA. This Agreement shall commence on the Effective date and shall continue for a period corresponding to the period the Licensee use the Protectoria Services.
6. Termination: Both parties shall have the right to terminate this Agreement by notice in writing to the other party upon any of the following events: a) the other party commits a material breach of any provision of this Agreement including non-payment of any sum due under this Agreement , which is capable of remedy and fails to remedy the same within 30 days of service of written notice specifying the breach and requiring the remedy; or b) either party ceases to carry out business, goes into liquidation or an administrative receiver or administrator is appointed for either party or its assets, or either party enters into a voluntary arrangement with its creditors or suffers any similar insolvency process or in case of any equivalent process occurs in any jurisdiction in the territory.
7. Law: This Agreement shall in its entirety be governed by and construed in accordance with the laws of Norway and the parties agree to submit to the exclusive jurisdiction of Oslo tingrett.
8. Notice: Any notice required to be given under this Agreement shall be in writing and in the English language. It shall be served personally or by pre paid-registered letter or by protected e-mail through the service addressed to Licensee’s address as given in the Order , or to Message Management, Gaustadalléen 21, N-0349 Oslo, Norway. Any notice served personally shall be considered given at the time of service. Any notice given by pre paid registered letter shall be deemed to have been received within two days after the date of posting and any notice given by protected e-mail through the service shall be deemed to have been given upon the day of transmission.
9. Export Restriction: Licensee will not remove or export from the United States or the country originally shipped to by Licensor (or re-export from anywhere) any part of the Software or any direct product thereof except in compliance with applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.
Valid as of 01-Sep-2008
