Standard terms of agreement Where this appendix refers to "The Supplier"/"The Suppliers", this shall be understood as Simployer AS/AB (Norway/Sweden, depending on the legal entity the agreement is signed by from Simployer’s side) including subcontractors.
This Agreement consists of two deliverables: 1) The establishment / implementation of the Service and 2) the Subscription Service.
Simployer AS/Simployer AB* (*:Norway/Sweden, depending on the legal entity the agreement is signed by from Simployer’s side) is responsible for the delivery of the establishment / implementation and the delivery of the subscription service of the service and will follow up the service, as well as any errors/defects related to it.
Simployer Solutions AS, a company in the Simployer group, is a subcontractor to Simployer AS/Simployer AB for key subscription services. Simployer AS/Simployer AB will provide support and will act as a point of contact for the Customer ("single point of contact"). Simployer AS/Simployer AB will also invoice on behalf of all companies.
2. Customer's right to use the service
The Supplier has and retains all rights to (including, but not limited to, intellectual property rights/other proprietary rights) systems (including source code and databases), concepts and user guides covered by the Agreement. The Customer undertakes not to sell, rent, lend or otherwise assign its access to others, except when necessary for The Customer's own use. Customer further undertakes not to copy, modify, adapt, create derivative works of or otherwise unlawfully exploit systems. Customer holds and retains all internal usage rights to content prepared by or for the Customer, including content based on the Supplier's templates. Such content may not be used for commercial purposes, either as payable or free service.
Through the duration of the agreement, the Customer is given an ongoing and non-transferable right to use the systems within the limitations of the Agreement.
The right to use the specific system and modules, including the access to relevant documentation, gives the Customer the right to make use of the system to the extent set out in the written agreement.
Customer may only use the system for data processing for their own purposes. Data processing for other Parties for consideration (payment) may only be carried out in accordance with prior written agreement with the Supplier.
During the duration of the agreement the system shall be physically located at the Supplier’s operating facility (or if relevant, at the operating facility of a professional third party that the Supplier uses as a subcontractor), unless otherwise agreed in writing with the Customer. The availability of the system and, planned downtime, is governed by the, at all times most recent and current Service Level Agreement (SLA) between the Supplier and the Customer.
The Customer is obliged to ensure that passwords are kept and handled in such a way that only those entitled to access by this agreement are granted access to the system.
The Customer does not have the right to make changes to the system's source code. Any changes made in relation to bug-fixes and maintenance may only be made by Supplier’s personnel, unless otherwise agreed in writing in advance.
The right of use shall apply and be valid until the agreement is terminated by one of the Parties pursuant to clause 8, or the agreement is terminated as a result of material breach/default.
The agreement regarding the continuous usage-right to the system, including maintenance/update-agreement (the main agreement) is a mandatory agreement connected to these terms and is an integral part of these Terms of Agreement. The Supplier reserves the right to bug-fix and mitigate errors continuously and make other changes to systems without further notice. The Customer's right to use the system, applies to the latest version of the system.
After the agreement has been terminated, the Customer may not in any way make use of data (“content”), information, etc. to which the Supplier has (intellectual property) rights. The Customer may thusly, after the agreement with the Supplier has been terminated, for example, not use such data in their own developed systems/applications or in systems/applications managed by others.
3. Customer's duty to participation under the agreement
In situations where the Supplier is dependent on getting texts, data, information ("content") etc. from the Customer in order to fulfil its part of the agreement, or if the Customer is otherwise to contribute to the completion of deliverables (that is; of implementation), the Customer shall respond as soon as possible and in accordance with deadlines agreed with the Supplier. If the Customer fails to comply with its obligations in accordance with the most recently agreed-to plan for progress/implementation-plan, the system will be delivered on the agreed delivery date with a content in accordance with the feedback which have actually been received (from the Customer) in line with the deadlines set and agreed to.
4. Invoicing, price adjustment and sales tax
Invoicing of implementation-services (professional services) will be invoiced per. month according to time spent and in line with the agreed-to progress plan. At the agreed delivery date, the fee for first year's right to use, including updating / maintenance, will be invoiced. In the event of delay in delivery due to the Customer's circumstances, the Supplier has the right to invoice for the entire agreed delivery at the agreed delivery date.
Subsequently, the Customer is invoiced for usage rights to the system including update/maintenance in advance 1 (once) per year, calculated from the agreed delivery date.
The price of the right to use the system including update/maintenance can be adjusted by the Supplier once per year. Price-increases that are larger than the "Statistics Norway's total labor cost index for business activities"/”SCBs index for labor cost for private sector (AKI)” (indexes in Norway or Sweden respectively, the effective being that which corresponds to the country in which the legal entity signing from Simployers's side resides in), based on the year of purchase, shall be duly notified to the Customer.
If the number of users increases after the time of renewal, The Supplier has the right to invoice the Customer for the increased number of users until the end of the renewed contract-period.
The implementation services and the subscription service, as defined in annexes of the Agreement, is provided, and invoiced by Simployer AS.
5. The right to use, and liability for subcontractors
The Supplier have the right to use subcontractors to fulfil their obligations, including the operation of-, and data-processing in the system. In such an event (where subcontractors are used), the Supplier is responsible for the performance of the subcontractor's tasks in the same way as if the Supplier itself was responsible for the performance. The use of subcontractors for the processing of any personal data is governed by the Data Processor Agreement.
6. Force majeure etc.
If the execution or obligations of the agreement is completely or partially impeded, or substantially hindered by matters beyond the control of the Parties/subcontractors, the Parties' duties are suspended for as long as such matters that gives rise to these hindrances endures. Such matters include, but are not limited to, strikes, lockouts, and any conditions that under Norwegian law will be regarded as force majeure.
7. Material breach, formal complaints
Defect/postponement of delivery (including downtime) of the system only exists if the essential functions stated in the product description are non-functional or not available for the Customer and its users. The Customer is obliged to, as soon as possible after delivery of the system, to test the system, as well as familiarize themselves with the system's possibilities and limitations as stated in the product description. The Supplier shall always have reasonable time and opportunity to correct the reason for the basis for a potential defect/delay or remedy the matter in another way. A claim for defect/delay must be invoked in writing and without undue delay after the defect/delay has been discovered or should have been discovered, otherwise the Customer will lose the right to compensation, price reduction, termination and other claims for breach of contract.
The Supplier is not responsible for matters beyond the company's control and which the company could not reasonably be expected to have considered at the time of the agreement or to avoid or overcome the consequences of. The Customer may not claim deduction in the annual price for right to use / maintenance, or make any other breach of contract, when interruptions in the delivery from the Supplier do not exceed the agreed values stipulated in the applicable SLA.
In the event of a material breach, the agreement may be terminated by both Parties with immediate effect.
If the Customer has been responsible for the material breach of contract, the Contractor may stop access or other lawful use of the system until the material breach is resolved. If the Supplier is responsible for the material breach of the agreement, the Customer shall, if the Customer does not have defaults according to the agreement, have access to their own data for a period corresponding to the normal cancellation- period.
A material breach of the Customer is in this regard, among other things, non-payment of all or part of the agreed amount (provided that the Customer has been given a notice with a minimum deadline of 15 days to settle) and the fact that the regulation of the right of disposition is breached as described in section 2 "Customer's participation in the delivery" and in the data processing agreement. If the agreement includes several partial deliveries, the Supplier may choose to take appropriate action for some of the partial deliveries, provided that it does not render other partial deliveries useless for the Customer.
Under this Agreement, the Customer is considered to be in a material breach of contract if they are responsible for non-payment of the complete or parts of the agreed-to consideration/payables (provided that the Customer has received a notice with a minimum time limit of 15 days to settle) or the fact that the regulation of the right to use is violated, see also section 2 "the Customer's duty to participation in the delivery" or breach of the data processing agreement. If the agreement includes several partial deliveries, the Supplier may choose to apply cancellation for some of the partial deliveries, if it does not render other partial deliveries unusable for the Customer.
Under this Agreement, what would constitute a material breach of contract by the Supplier, is i.e., gross negligence, breach of applicable laws and rules or breach of contract.
The Supplier shall not be held liable for indirect or incidental loss or damage and loss of data unless this is due to gross negligence or intent. Considered as indirect or incidental losses, are amongst the following, but not limited to; the Customer's loss of profits of any kind, loss of Customers, loss due to outages/downtime, consequential losses and third-party claims. In any circumstance, the liability for the Supplier is limited to documented financial loss that one could reasonably have been predicted as a foreseeable consequence of the breach of contract, and is limited in any circumstances to the total consideration excl. vat agreed for the part of the delivery of the service in matter. This means that the total compensation per contract period is limited to an amount equal to the total consideration for the operating service excluding vat. for the current period. If the Customer neglects to limit the financial loss through reasonable measures, the Customer must bear the corresponding portion of such loss himself.
8. Duration and termination
The Agreement to the Right to Use including updates/maintenance has a duration of one (1) year from the agreed delivery date of the system. The agreement is then automatically renewed for one (1) and one (1) year at a time if neither Supplier nor the Customer has terminated it no later than 3 months before the end of the contract period. Termination may only be made in writing. The renewal applies to the number of users at the time of renewal. Termination by the Supplier requires a justifiable reason.
In the event of a full or partial expiration of the Agreement, the Customer's access to the system and documentation for which the termination is enforceable shall be immediately removed. This applies regardless of whether the termination is due to termination or is a consequence of the agreement being fully or partially terminated from either party due to material breach.
The return of the Customers data is regulated by the Data Processing Agreement and the applicable SLA.
If the Customer has breached the agreement, the Supplier may refuse to return the system-data until the Customer has indemniated the Supplier. This does not apply to the Customers personal data as defined in the General Data Protection Regulation (“GDPR”).
The Customer may not assign its rights and obligations under the agreement to any other party without the prior written consent of Supplier. Such consent is necessary even if the transfer of rights occurs as part of a merger with another company (merger) or division of the company (demerger). The Supplier cannot refuse to transfer the agreement without proper grounds. The Supplier may assign its rights and obligations under the agreement to a third party with liberating effect.
10. Confidentiality - trade secrets etc.
All information entrusted to the Parties' employees and others acting on the behalf of the Parties in relation with the execution of the Agreement shall be treated confidentially and not made available to any outside party without the prior written consent of the other party to the Agreement.
The provision in the first paragraph does not prevent the disclosure of information if required by a public authority authorized to do so. When possible, the other party shall be notified before such disclosure of information.
The Parties may disclose information to outsiders to the extent necessary for the execution of the Agreement, provided that such other recipient of the information is required to have a likewise duty regarding confidentiality as set out in this section.
The provision in this section shall not prevent the Parties from utilizing the knowledge and expertise gained in connection with the execution of the agreement.
The duty of confidentiality continues to apply also after the agreement has been ended or otherwise terminated.
11. Changes to agreement, standard terms and effective version
The Supplier may change the content of the Agreement and the appendices, including the Standard Terms of the agreement. Changes can for example come as a result of product development, market development, company changes, unforeseen events or changes in regulations. If changes lead to significantly altered services, the Customer has the right to terminate these.
Changes will be notified 90 days before they take effect. Prior notification is not necessary when the changes are to the benefit of the Customer or are of no importance to the Customer.
The supplier's most recent and effective version of the Standard Terms, Service Level Agreement and Data Processing Agreement is at all times available on the Supplier's website, see here.
12. Choice of law, mandatory negotiation and legal venue
National legislation shall apply to this Agreement according to the residing country in which the legal entity that has signed the Agreement from Simployer’s side. Any dispute arising out of the agreement shall be sought to be resolved by negotiation between the Parties. If negotiation is unsuccessful, the matter shall be resolved by the ordinary courts where the legal entity that has signed the Agreement from Simployer's side resides.
If any provision of this Agreement or its performance is deemed invalid under the law, this shall have no effect on the validity of the remaining provisions of the Agreement.