SOFTWARE AS A SERVICE (‘SAAS’) TERMS AND CONDITIONS
Background
Powel has developed the User Platform ‘powel.net’ which offers certain services to be provided to Powel Customers as Software as a Service (SaaS) made available online, and subject to a subscription fee after a free trial period (if applicable).
These terms and conditions apply to the provision of such services to the Customer.
Agreed terms
- Interpretation
Authorised Users or Users: those employees, contractors or partners of Customer who are authorised by Customer to use the Subscription Services as named users by using their respective Azure AD identities.
Business Day: any day which is not a Saturday, Sunday or public holiday in Norway.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or by its nature to be treated as Confidential Information.
Customer: a customer who is buying Software as a Service on the Platform.
Customer Data: the data inputted by Authorised Users, or Powel on Customer's behalf for the purpose of using the Subscription Services.
Data Controller: means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of (personal) data. In relation to the Subscription Services covered by these terms and conditions, Customer is understood to be the Data Controller.
Subscription Term: the term as set out in the respective SaaS description available on the Platform that has been chosen by Customer.
Normal Business Hours: 8.00 am to 4.00 pm local CET, each Business Day.
Party/Parties: Powel and/or Customer.
Personal Data: means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Platform: the platform available on powel.net.
Powel: Powel AS with VAT registration no. 976 574 958, located at Klæbuveien 194, 7037 Trondheim, Norway, unless another Powel entity is stated with its name, VAT number and address in the description of the respective SaaS.
Processing: means any operation or set of operations which is performed on data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Processor: means a natural or legal person, public authority, agency or any other body which processes Personal Data on behalf of the Controller. In relation to these terms and conditions, Powel is understood to be the Processor.
Subscription Services: the subscription services that are provided by Powel to Customer as more particularly described on the website powel.net.
Software: the online software application(s) provided by Powel as part of the Subscription Services.
Subscription Fees: the subscription fees payable by Customer to Powel for the User Subscriptions as set forth on the website for the respective Subscription Services on Powel.net.
Support Services: the support services provided by Powel in regards of the Software and Subscription Services as further specified on the Platform.
User Subscriptions: the user subscriptions purchased by Customer which entitle Authorised Users to access and use the Subscription Services in accordance with these terms.
- Subscription Services
2.1 Powel shall during the Subscription Term provide the Subscription Services to Customer, subject to these terms and conditions. For the initial activation of the Subscription Services, irrespective if for a free trial period or for a purchased period, the Customer’s authorized representative shall send the order and accept these terms and conditions by clicking the ‘I accept’ button below. The Subscription agreement between the Parties shall enter into force once Powel has confirmed the order by sending the Customer a confirmation email.
2.2 Powel reserves the right to make improvements, or add, change or remove functionality, or correct any error or omission in any part of the Subscription Services at its sole discretion and without any obligation or liability to be derived therefrom. Should such improvements nevertheless cause a breaking change without backwards compatibility, the Customer shall be noticed at least 30 (thirty) days before implementation of changes and will be entitled to terminate the affected Subscription Services. In case of such termination the Customer shall receive a pro-rated refund for any Subscription Fee already paid for the affected Subscription Services for the time after the termination becomes valid.
2.3 General notices and information about the Platform on powel.net, such as information about new features, planned maintenance or similar are provided on powel.net, either on the login screen or on the relevant website, and shall be deemed notified when posted there. Powel may also send such general information to the Customer by email.
2.4 Powel also reserves the right to make changes to these terms and conditions at its sole discretion. Any major changes shall be notified to the Customer by 30 (thirty) days prior written notice. Non-acceptance of such changes by Customer constitutes a termination of the Subscription Services at the end of the calendar month during which the notification by Powel has been send. In case of such termination the Customer shall be entitled to a pro-rated refund of any Subscription Fee already paid for the time after the termination becomes valid.
2.5 To the extent that standard software included in the Subscription Services is subject to a third party’s standard licence terms and conditions, such as for software solutions that are provided by Powel’s subcontractor Esri Inc., those shall be added to these terms and conditions. The provisions of such licence terms and conditions governing right of use shall prevail over the provisions governing the use right as set forth in these terms. In the event of defects in title, Powel shall not be liable for damages for defects in title associated with standard software beyond that what follows from those third party licence terms and conditions.
- User subscriptions
3.1 Subject to the terms and conditions set forth herein, Powel hereby grants to Customer a non-exclusive, limited, terminable and non-transferable right to permit the Authorised Users to use the Subscription Services during the Subscription Term solely for Customer's own business processing.
3.2 In relation to the Authorised Users, Customer acknowledges to have full responsibility for all Authorized User’s activities and compliance with these terms and conditions. Furthermore Customer undertakes that:
(a) the maximum number of Authorised Users authorised to access and use the Subscription Services shall not exceed the number of User Subscriptions it has purchased;
(b) each Authorised User shall keep a secure password for his use of the Subscription Services, and shall keep such password confidential;
(c) each Authorised User shall not transfer viruses, worms or harmful codes of any kind to the Subscription Services, and neither use the Subscription Services for any illegal or unauthorized purpose, nor violate any applicable laws or regulations.
3.3 Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, or if expressly agreed between the Parties in writing:
(i) except to the extent expressly permitted under these terms, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble or reverse engineer all or any part of the Software; or
(b) access all or any part of the Subscription Services in order to build a product or service which competes with the Subscription Services; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided for in these terms and conditions.
3.4 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and, in the event of any such unauthorised access or use, promptly notify Powel accordingly.
- Customer data
4.1 The Subscription Services include Processing of Customer Data by Powel as Processor. Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data; furthermore that the Processing of Customer Data where applicable has been notified to the relevant supervisory authorities and/or consented to by the respective data subject(s), and that the Customer as Data Controller shall notify the relevant supervisory authorities and/or data subject of any breach or unauthorized disclosure of special categories of data such as Personal Data.
4.2 Powel as the Processor shall Process the Customer Data only on behalf of the Customer and only for the purpose of and to the extent necessary for providing the agreed Subscription Services to Customer, and in accordance with applicable laws and regulations and any lawful instructions given by Customer.
4.3 The following shall apply for the Processing of Customer Data by Powel:
(a) In order to carry out the Services and Powel’s other obligations hereunder, Powel shall transfer or store any Personal Data only within Norway or any other country within the EU/EEA;
(b) Customer shall ensure that Customer is entitled to transfer the relevant Personal Data to Powel so that the Powel may lawfully use, process and transfer the Personal Data in accordance with these terms on Customer's behalf;
(c) Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) Powel shall process the Customer Data only in accordance with these terms and any lawful instructions reasonably given by Customer from time to time.
4.4 Customer acknowledges that Powel uses the Microsoft Azure platform for Processing of Customer Data. Powel has an agreement with Microsoft as subcontractor regarding storage of data (including backup) and software in Microsoft Azure where the Customer can use the SaaS. The operations services from Powel includes necessary infrastructure for the cloud solution (servers, databases, network) in Microsoft Azure and storage of data in the cloud solution Microsoft Azure. The solution uses Microsoft’s security mechanisms in order to prevent unintentional access to solution and data. The Customer is aware of and consents to that its data provided by using the SaaS is stored by Microsoft.
4.5 Powel shall, by way of planned and systematic measures, ensure satisfactory information security in accordance with applicable laws and regulations with regards to protecting Customer’s data from any loss, misuse, access or alteration by unauthorized persons. Powel shall be able to document its information system and security measures undertaken. Such documentation shall upon request be made available to Customer and its auditors and also to authorities responsible for data supervision and personal data protection. Furthermore Powel shall implement reasonable measures to ensure against any unintentional change or deletion of data, and against attacks by virus or other malware. Powel shall be obliged to keep Customer Data separate from any potential third party data, in order to exclude the risk of damages and/or insight to the data. Any access by Powel’s employees or others that have no need for such information in regards of their work for Powel is also considered as unwanted change or insight.
4.6 Powel shall immediately inform the Customer in the event of any uncertainty or actual breach relating to the Customer’s data processed or stored through the SaaS.
- Warranty
5.1 Powel shall perform the Subscription Services substantially in accordance with the description of the respective Subscription Services on the Platform, and with reasonable skill and care. The undertaking in this clause 5.1 shall not apply to the extent that any non-conformance is caused by use of the Subscription Services contrary to Powel's instructions, or modification or alteration of the Subscription Services by Customer or any party other than Powel, its duly authorised contractors or agents. Subscription Services are neither contingent on the delivery of any future versions or functionality nor dependent on any publications, materials or comments regarding the same made by or on behalf of Powel.
5.2 If the Subscription Services do not conform to the foregoing undertaking, Customer shall notify Powel accordingly in writing, and Powel shall correct such defect within reasonable time. Such correction constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set forth in clause 5.1. Notwithstanding the foregoing, Powel
(a) does not warrant that the Customer's use of the Subscription Services will be uninterrupted or error-free; nor that the Subscription Services and/or the information obtained by the Customer through the use of the SaaS will meet the Customer's requirements; and
(b) 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 the Subscription Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 If Powel documents that deviations in the Subscription Services such as those mentioned in the preceding paragraph are due to the behaviour of the third party standard software not matching its specifications, Powel's obligation to rectify the errors is limited to reporting the error to the software producer, seeking to the best of its ability to make rectification of the error a priority, keeping Customer informed about the status of the error rectification, and making the rectified version available to Customer once the error in the standard software has been rectified by the software producer.
5.4 Powel warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the provision of the Subscription Services.
5.5 If using any subcontractors for providing the Subscription Services, Powel shall inform the Customer accordingly and get the Customer’s written consent prior to proceeding with the use of such subcontractor. Customer acknowledges and hereby expressly gives consent to the use of Microsoft Inc. as Powel’s subcontractor regarding the storage of Customer’s data in the Microsoft Azure cloud, and the use of Esri Inc., 380 New York St., Redlands, CA 92373-8100 USA, for some standard software forming part of the Subscription Services. Powel shall remain fully responsible for the performance of some parts of the Subscription Services by its subcontractor(s) in the same manner as if performing such services by itself.
- Customer's obligations
Customer shall:
(a) provide Powel with all necessary co-operation and information as may be required by Powel in order to render the Subscription Services, including but not limited to Customer Data, security access information and configuration services;
(b) carry out all other of Customer’s responsibilities set out herein in a timely and efficient manner;
(c) ensure that the Authorised Users use the Subscription Services in accordance with these terms and conditions and shall be responsible for any Authorised User’s breach of these terms;
(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for Powel, its contractors and agents to perform their obligations hereunder;
(e) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Platform, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's network connections or telecommunications links or caused by the internet.
- Subscription Fees and payment
7.1 Customer shall pay the Subscription Fees to Powel for the User Subscriptions in accordance with this clause 7 and the price list made available on the website for the respective Subscription Service on the Platform.
7.2 Powel shall invoice the Customer:
(i) Following acceptance of these terms and conditions by Customer for the Subscription Fees payable in respect of the Subscription Term; and
(ii) at least 30 (thirty) days prior to each anniversary of the beginning of the Subscription Period for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 (thirty) days after the date of such invoice.
7.3 If Powel has not received payment within 30 (thirty) days after the due date, and without prejudice to any other rights and remedies of Powel, Powel may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Subscription Services and Powel shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
7.4 All amounts and fees stated or referred to herein
(a) shall be payable in Norwegian kronor (NOK), unless specified otherwise for the respective SaaS product;
(b) are, unless stated otherwise in these terms and conditions, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Powel’s invoice(s) at the appropriate rate.
7.5 Powel shall be entitled to increase the Subscription Fees at its sole discretion, subject to 60 (sixty) days' prior notice to the Customer, with Customer being entitled to terminate the Subscription Services with 30 (thirty) days’ written notice following such notification. In case of such termination the Customer shall be entitled to a pro-rated refund of any Subscription Fee already paid for the time after the termination becomes valid.
- Proprietary rights
8.1 The Customer acknowledges and agrees that Powel and/or its licensors own all intellectual property rights (‘IPR’) in the Software and the Subscription Services, whereas IPR shall include, but not be restricted to, copyright, patents, trademarks (whether registered or unregistered), database rights, trade secrets, trade names, design and product design, source code or know-how.
8.2 Customer shall have no rights to the Software and the Subscription Services other than the use rights expressly stated in these terms. If the Customer infringes upon the IPR of Powel and/or its licensors, or uses the Subscription Services in a way that is not compliant with these terms and conditions, the Customer shall pay a penalty fee that is equivalent to the Subscription Fee paid by the Customer during the year in which such infringement has occurred, or the equivalent of one year’s Subscription Fee for its licenses currently held, whichever the greater. Payment of such penalty fee does not prevent Powel from claiming any additional compensation for damages occurred as a direct consequence of such infringement. The Customer acknowledges that Powel may suffer irreparable harm as a consequence of the infringement of their IPR, and that Powel or its licensors shall have the right to take all reasonable steps to protect its commercial and proprietary interests, including taking any remedy as may be available by law.
- Confidentiality
9.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations hereunder. A Party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving Party;
(b) was in the other Party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving Party by a third Party without restriction on disclosure;
(d) is independently developed by the receiving Party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 Each Party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than agreed for the performance of the Subscription Services.
9.3 Each Party shall ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms and conditions.
9.4 The Customer acknowledges that details of the Subscription Services constitute Powel's Confidential Information , and Powel acknowledges that the Customer Data is the Confidential Information of the Customer.
9.5 This clause 99 shall survive termination of the Subscription Services hereunder, howsoever arising.
- Indemnity
10.1 Powel shall defend the Customer, its officers, directors and employees against any claim that the Subscription Services infringes any patent effective as of the date these terms and conditions have been accepted by Customer, or any copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Powel is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Powel in the defence and settlement of such claim, at Powel’s expense; and
(c) Powel is given sole authority to defend or settle the claim.
10.2 In the defence or settlement of any claim, Powel may procure the right for the Customer to continue using the Subscription Services, replace or modify the Subscription Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the respective Subscription Services on fourteen (14) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer other than a refund of any Subscription Fee paid by Customer in advance for the period following such termination.
10.3 In no event shall Powel, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Subscription Services by anyone other than Powel or any suppliers Powel is responsible for; or
(b) the Customer's use of the Subscription Services in a manner contrary to the instructions given to the Customer by Powel; or
(c) the Customer's use of the Subscription Services after notice of the alleged or actual infringement by Powel or any appropriate authority.
- Limitation of Liability
11.1 This clause 11 sets out the entire financial liability of Powel to the Customer, to the extent legally permissible, in respect of:
(a) any breach of these terms and conditions by Powel;
(b) any use made by the Customer of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms and conditions.
11.2 Except as expressly and specifically provided herein Customer assumes sole responsibility for results obtained from the use of the Subscription Services, and for conclusions drawn from such use. Powel shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Powel by the Customer in connection with the Subscription Services.
11.3 Notwithstanding anything to the contrary stated in these terms, Powel shall not be liable for any loss of profits, loss of business, depletion of 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 Powel’s total aggregate liability for the breach of any of its obligations hereunder shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 (twelve) months immediately preceding the date on which the claim arose. Aforementioned limitation of liability does not apply if Powel has acted with wilful misconduct or gross negligence.
- Term and termination
(a) either party notifies the other party of termination, in writing, at least 15 (fifteen) days before the end of the Subscription Term or any Renewal Period, in which case the use of the Subscription Services by the Customer shall terminate upon the expiry of the applicable Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions set forth herein.
12.2 If a free trial period is offered for the respective Subscription Services on the Platform, such free trial period shall commence as stated in clause 12.1, and terminate upon expiry of the time period indicated for such free trial period. Any further use of the Subscription Services after the expiry of the free trial period shall be subject to the Customer buying a Subscription for the respective Subscription Service.
12.3 Upon termination of the Subscription Services for any reason:
(a) all licences for use of the Subscription Services granted hereunder shall immediately terminate;
(b) each Party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other Party;
(c) Powel may destroy or otherwise dispose of any of the Customer Data in its possession unless Powel receives, no later than ten (10) days after the effective date of the termination of the Subscription Services, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Powel shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request. The Customer shall pay all reasonable expenses incurred by Powel in returning or disposing of Customer Data.
- Force majeure
Neither Party shall have any liability to the other Party hereunder if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control that have not been reasonably foreseeable when entering into this Subscription agreement, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, 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, provided that the other Party is notified of such an event and its expected duration.
- Severance
14.1 If any provision (or part of a provision) of these terms and conditions is to be invalid, unenforceable or illegal, the other provisions shall remain in full force and effect.
- Entire agreement
15.1 These terms and conditions, and any documents referred to herein, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Assignment
- No partnership or agency
17.1 Nothing herein is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- Notices
18.1 Any notice required to be given hereunder shall be in writing and sent by email to:
(i) if to Customer: to the person named by Customer as administrator;
(ii) if to Powel: to support@powel.net.
- Governing law and jurisdiction
19.1 Any disputes or claims arising out of or in connection with this Subscription agreement, or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of Norway.
19.2 The parties irrevocably agree that the courts of Norway shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims), with the Sør-Trøndelag tingrett, Trondheim, being the applicable venue for such dispute resolution.