Dataloy End User Agreement

Created by Ilona Belevica
Last updated: Mar 01, 2019 by Dataloy Support

1. END USERS ACCEPTANCE OF THIS AGREEMENT

This End User Agreement (the "Agreement") sets forth the terms and conditions governing purchases of products and/or services from Dataloy Systems AS ("Dataloy").

By allowing the "I agree to the terms and conditions of the End User Agreement" box to remain checked, or by installing or using Dataloy products or hosted services, End user agrees to be bound by this Agreement. If you do not agree to this Agreement, then uncheck the "I accept" box and do not install or use the Dataloy products or services.

For the purpose of this Agreement, "End User" means (i) either you as an individual or (ii) your company, if you are using Dataloy products or services in your capacity as an employee or agent of a company. You identify the specific "End User" during the registration process.

Dataloy may from time to time modify this Agreement and any referenced policies or other documents. Such modifications shall be published on Dataloy's website (Dataloy Support) and shall be legally binding for End User as from the date of the first yearly renewal thereafter of the mandatory Maintenance and Support Agreement entered into by End User pursuant to Section 8 below. In order to keep track of such possible modifications, End User shall be obliged to check all relevant documents prior to each yearly renewal of the Maintenance and Support Agreement.

2. DEFINITIONS

  1. ”Agreement” shall mean this End User Agreement with incorporated references.

  2. "Affiliate" shall mean any entity which End User directly or indirectly controls, through 50% or more voting control.

  3. “Dataloy” means Dataloy Systems AS, a company duly registered under the laws of Norway, with company no. 984 316 453 and address Halfdan Kjerulfsgate 4, 5017 Bergen, Norway

  4. “Date of Delivery” shall mean the day that the Licensed Software was received by the End User or made available to End User online by Dataloy as a Hosted Service.

  5. “Documentation” shall mean user manuals and other published specifications related to the Licensed Software.

  6. “End User” shall mean the company (or individual) purchasing Dataloy Software or Hosted Services and thereby submitting to the terms and conditions of this Agreement.

  7. “Error” shall refer to the Licensed Software or part of the Licensed Software that does not operate in conformity with Dataloy's user manuals found in the Dataloy Knowledge Base.

  8. “Hosted Services” shall mean any Software or service purchased by End User as a hosted service hosted by Dataloy, which among others may include online/on-demand versions of Licensed Software, mere hosting services, etc.

  9. “Intellectual Property Rights" shall mean all and any intellectual property rights arising under statute, regulations, ordinance, common law, treaty, convention or otherwise, and whether or not vested or inchoate, including, without limitation patents and inventor's rights, copyrights and neighbouring rights, trademark rights, design rights, rights to trade secrets and Confidential Information, know how, etc.

  10. “License” shall mean the limited usage right to the Licensed Software and/or Hosted Services granted to End User according to Clause 4 below.

  11. “License Fee” shall mean the up front fee(s) payable by the End User for the right to use the Licensed Software and/or the Hosted Services according to the prices specified in the Price List in effect at the time of purchase.

  12. “Licensed Software" shall mean the Software purchased by End User, either as a software product or a Hosted Service, through placement of order(s) as prescribed in this Agreement, including all updates, revisions, modifications, bug fixes, and new versions and releases thereof rightfully received by End User. Purchases are made by End User through submission of Dataloy's online order form and confirmed automatically through order confirmations generated by Dataloy.

  13. “Maintenance and Support Fee” shall mean the yearly maintenance and support fee to be paid by End User, in addition to the License Fee, as long as the End User subscribes to Dataloy's Maintenance and Support Services.

  14. "Maintenance and Support Services" shall mean such maintenance and support services as described in Maintenance and Support Services.

  15. “Price List” shall mean Dataloy's standard price list at any time, stating the license fees (prices) related to Software products and Hosted Services. All prices are stated ex VAT and other applicable fees and taxes.

  16. “Software" refers to any object code computer program or plugin included in the software suite offered by Dataloy at any time.

  17. “User” shall mean any individual person rightfully authorised by the End User to use the Licensed Software in accordance with this Agreement.

3. EFFECTIVE DATE

The Agreement is effective as of the date when an order placed by End User is confirmed by Dataloy through an automatically generated order confirmation sent to the e-mail address stated by End User in the online order form ("Effective Date").

4. GRANT OF LICENSE

Dataloy grants to End User, and End User accepts, a nonexclusive, nontransferable and non-sublicenseable right to use Licensed Software and/or Hosted Services, in accordance with the terms and conditions of this Agreement and with the restrictions contained in this Clause 4 and in Clause 8 below (regarding mandatory Maintenance and Support Services).

The License is restricted to use of Licensed Software and/or Hosted Services only by authorised Users. End User will be allocated one admin-User, who may create new Users within End User according to End User's needs at any given time. The License Fee will be calculated per User, and Dataloy will invoice End User based on the actual number of Users at any given time. End User shall be responsible for all Users' compliance with this Agreement.

A License purchased by End User is valid for the End User itself and any Affiliate of the End User. The License grants End User the right to run the Licensed Software from one single server environment, either at a location chosen by End User's or, when purchased as a Hosted Service, from a server chosen by Dataloy.

End User may make a limited number of copies of the Licensed Software to the extent such copying is strictly necessary for data protection, archiving, backup, and testing purposes. Other copies shall not be made.

The License covers the License Software and/or Hosted Services as is at the Date of Delivery in addition to the updates, revisions, modifications, bug fixes, and new versions and releases thereof issued during the contract period.

Upon receipt of the License Fee, Dataloy shall furnish End User with the keys and passwords needed to gain access to the Licensed Software and Hosted Services.

End User may not reverse engineer and/or compile or disassemble the Licensed Software. Under no circumstances shall the Licensed Software be used by End User to generate or tune alternative models, correlations or numerical solutions to the Licensed Software. The End User is not entitled to make any modifications to the Licensed Software. Any modifications made to the Licensed Software will terminate any duty of Dataloy under warranties and Dataloy's obligation to provide Maintenance and Support Services and will be regarded as a material breach of the Agreement.

5. LICENSE FEE

In consideration of the License granted to End User under this Agreement, End User shall pay the License Fee specified in Dataloy's order confirmation within the time-limit specified therein.

6. OWNERSHIP OF SOFTWARE AND HOSTED SERVICES

All rights, title, ideas, know-how, techniques and interest in and to, and all Intellectual Property Rights in and related to, the Software and the Hosted Services and databases and collections of business sensitive data contained therein, including any improvements or modifications made to the Software and Hosted Services during the term of this Agreement, are and shall remain owned solely, exclusively and in its entirety by Dataloy, its successors and assigns. Nothing in this agreement shall be held or interpreted as transferring any such proprietary rights to End User.

7. CONFIDENTIAL INFORMATION

For the purpose of this Agreement, "Confidential Information" shall mean any information and/or data in any form, whether tangible or intangible, which is disclosed to one party to this Agreement (the "Receiving Party") by the other party hereto (the "Disclosing Party") irrespective of the mode or medium by which same may be communicated, and which (a) is defined or designated as such under any provision of this Agreement and/or any other obligation of confidentiality between the parties or (b) consists of any of the following: (i) any and all object or source code of the Licensed Software, (ii) all cryptographic algorithms, all trade secrets and all business sensitive information (including but not limited to harbour- and distance data) embodied in the Licensed Software, and (iii) all customer lists, business plans, sales forecasts, and financial data of the End User or Dataloy. Notwithstanding the foregoing, "Confidential Information" shall not include any information, data and/or intelligence which: (i) is already known to the Receiving Party at the time the Receiving Party receives the information from the Disclosing Party; or (ii) is or becomes publicly known through no wrongful act of the Receiving Party; or (iii) is rightfully received by the Receiving Party from a third party who does not owe a duty of confidentiality to the Disclosing Party; or (iv) is or was independently developed by the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party; or (v) is or has previously been disclosed by the Disclosing Party to a third party other than on a confidential basis; or (vi) the Receiving Party is required by law to disclose, provided that the Receiving Party exercises its best efforts to provide the Disclosing Party with prompt prior written notice and an opportunity to contest such disclosure and discloses such Confidential Information only as and to the extent required by law; or (vii) is approved for disclosure and/or use by prior, express written authorisation from the Disclosing Party.

The parties shall use the other party’s Confidential Information only for the purposes of, and in performance of their rights and obligations under, this Agreement. The parties shall as a minimum treat the Confidential Information in the same manner as they, or any diligent person, protects its own Confidential Information. The End User is permitted to disclose the Confidential Information to its employees and independent contractors on a need to know basis, provided that such employees and/or independent contractors have signed a written confidentiality agreement including the same terms as stated in this Agreement.

The End User shall be responsible for, and shall indemnify and hold the Dataloy harmless from, any damages, expenses or costs resulting from unauthorised disclosure of Confidential Information.

The End User shall:

  1. Inform its personnel of the duties, rights and obligations under the Agreement

  2. Keep a list of all copies (including backup copies) of the Licensed Software and their location of archive

  3. Protect the Licensed Software against any action from its own personnel or others that could lead to breach of the Agreement.

The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.

8. MAINTENANCE AND SUPPORT SERVICES

End User shall be obliged to purchase Maintenance and Support Services from Dataloy for all Licensed Software and Hosted Services covered by the License. Maintenance and Support Services are governed by Dataloy's standard terms and conditions available in the Maintenance and Support Services description. End User's License to use the Licensed Software and Hosted Services or any parts thereof according to this Agreement expires as of the date when the End User terminates it's subscription to Maintenance and Support Services.

All prices may be revised by Dataloy from time to time, usually influenced by consumer price inflation.

9. TRAINING

End User should ensure that its Users have a basic understanding of the capabilities and limitations of the Licensed Software and Hosted Services. All Users need the necessary training and competence to perform the work associated with the use of the Licensed Software and must study the relevant Dataloy user manuals found in the Dataloy Knowledge Base.

The End User will appoint a sufficient number of superusers to be trained by Dataloy before start using the system.

Dataloy will discuss with End User if on-site or remote training is most suitable using Dataloy’s standard conditions for such services.

10. TRANSFER RESTRICTIONS

End User may not transfer this Agreement to any third party or grant any sublicenses without the prior written approval of Dataloy. Licensed Software cannot be moved to a different site without the prior written approval of Dataloy. If assistance in transferring the Licensed Software to another computer is needed, assistance will be charged according to the Dataloy’s standard consulting rates.

11. MARKETING

Dataloy may include End User’s company name in a list of Dataloy customers and Licensed Software users. In addition, Dataloy may publicise the existence of this Agreement.

Upon Dataloy’s reasonable request, End User will provide Dataloy with electronic versions of End User’s company logo, product logo(s), and product shots. End User agrees that Dataloy may use these items in its literature and advertising.

12. TERMINATION

The License commences on the Date of Delivery and will, until its expiration, not terminate provided that End User complies with the provisions of this Agreement.

If one party breaches its payment obligations, goes bankrupt, or seeks bankruptcy protection, or in other ways materially fails to fulfil its obligations according to this Agreement and fails to rectify this non-fulfilment within sixty (60) calendar days of receiving written notice from the other party, the other party may with immediate effect terminate the Agreement.

If the End User does not pay any amount due within agreed time, Dataloy is entitled to interest on late payments at one (1) per cent per month on the balance due. If payment is thirty (30) calendar days overdue, and End User fails to rectify this non-fulfilment within thirty (30) calendar days of receiving written notice from the Dataloy, the Dataloy have the right with immediate effect to terminate the Agreement.

End User may terminate the Agreement upon three (3) months prior written notice.

Upon lawful termination of the Agreement, the End User shall immediately cease to use all Licensed Software and Hosted Services and return all copies of the Licensed Software, Documentation and hardware key(s) covered by the Agreement to the Dataloy.

The End User shall inform all of its relevant personnel that the Agreement has expired. The End User shall inform Dataloy in writing when the End User has completed his obligations on termination. The End User's obligations shall be fulfilled and notice shall be sent within fifteen (15) calendar days after termination.

13. EXTENSION OF AGREEMENT, ETC.

The End User may request additional licenses by adding additional Software to the Licensed Software and by increasing the number of authorised Users. For such additional licenses, separate order forms must be submitted and End User shall pay additional License Fee(s) according to the Price List. Such additional licenses, when activated (through actual use), will also increase the Maintenance and Support Fee(s). All additional licenses are subject to the terms and conditions of the Agreement.

The End User may deactivate and reactivate its authorized Users at any time, but shall at all times have at least two – 2 – active Users. After expiry of the first year of the contract period, End User shall only pay Maintenance and Support Fee with respect to active Users at any given time. A User shall be deemed to be active when actually using the Licensed Software. Dataloy will each month collect information about the number of active Users within End User, to be used as basis for the calculation of the Maintenance and Support Fee.

14. WARRANTY

Dataloy warrants that it has all necessary rights to grant the License granted under this Agreement, and the End User's use of the Licensed Software will not infringe any copyrights or other protected rights of any third party.

The Licensed Software is delivered “as is”, and Dataloy warrants that the Licensed Software will perform in accordance with the User Manual. Dataloy does not guarantee that the Licensed Software will work without interruptions or errors.

Dataloy makes no warranties, expressed or implied, including without limitation, any warranties of merchantability or fitness for a particular purpose, and all such other warranties are hereby disclaimed and excluded by Dataloy.

15. LIMITATION OF LIABILITY

In no event regardless of any negligence shall Dataloy be liable for any consequential, incidental, indirect, special or consequential damages, including but not limited to any lost revenue, profits, investments, data, use or lost savings arising out of the use or inability to use the Licensed Software or Hosted Services even if Dataloy has been advised of the possibility of such potential loss or damage. Any liability for damages arising out of this Agreement shall in no event exceed the amount received by Dataloy from End User with respect to the particular transaction that gives rise to the liability, exclusive Maintenance and Support Fee(s), and value-added tax.

16. INDEMNITY

Dataloy will defend, indemnify and hold the End User harmless against any claim stating that the Licensed Software is violating any third party copyright or patent enforceable in the European Economic Area (the member states of the European Union, Norway, Iceland and Lichtenstein) or the United States of America provided that:

  1. The End User promptly notifies Dataloy of the claim,

  2. Dataloy has sole control of the defence and all related settlement negotiations,

  3. The End User provides Dataloy with all necessary assistance, information and authority to perform the above.

If Dataloy believes that the Licensed Software is likely to be subject of an infringement claim it may elect to replace or modify it to make it non-infringing or terminate the Agreement on six (6) months written notice to the End User. If Dataloy terminates the Agreement, the End User will be given a pro rata credit for any prepaid maintenance and License Fee for the part of the year of termination which the End User cannot make use of the Licensed Software.

Notwithstanding the foregoing, Dataloy's indemnity obligations under this Clause 16 shall under any circumstances be limited to the total amount invoiced to End User by Dataloy under this Agreement during the last twelve (12) months prior to the day when the indemnity claim was raised by End User.

17. EXPORT LAW ASSURANCES

The End User warrants that neither the Licensed Software nor any other technical data received from Dataloy, nor any direct product thereof, will be shipped, transferred or exported, directly or indirectly, to any country in violation of the governing law of the Agreement.

18. FORCE MAJEURE

In the event that a party is delayed or hindered in the performance of its obligations hereunder by force majeure, the Agreement shall be suspended until the cause thereof has ceased. Should an incident of force majeure last longer than three (3) months, either party shall have the right to terminate the Agreement giving the other party thirty (30) calendar days’ written notice.

19. TAXES

Fees listed in the Agreement or the Price List do not include taxes. Any sales, use, property, value-added or other taxes or duties based on the License granted or services rendered under the Agreement or on the End User's use of the Licensed Software, shall be assumed and paid by the End User.

20. ENTIRE AGREEMENT

This Agreement embodies the entire contract between Dataloy and End User and shall supersede and replace any previous agreement, written or oral, with respect to the subject matter of this Agreement.

21. GOVERNING LAW

The Agreement shall be construed and interpreted in accordance with the laws of Norway.

22. ARBITRATION

Any dispute between the parties that may arise in connection with, or as a result of the Agreement and which cannot be settled by mutual agreement shall be settled by arbitration proceedings. The parties accept the Oslo Chamber of Commerce arbitration institute as the proper legal venue for any settlement of such disputes. Any documentation presented to, and any proceedings before, the court shall be conducted in English language, and no ruling of the court shall be public.

23. NOTICES

All notices to Dataloy to be given under this Agreement shall be in writing and shall be delivered personally or sent by airmail, by electronic mail, or by fax to the address set out Dataloy's order confirmation or to such other address as may from time to time be notified to End User.