Etain AS is a Norwegian limited liability company with org. No. 920 998 704 (hereinafter “Etain”).
Etain provides a variety of software solutions for collaboration, productivity and automation of working processes, including maintenance of and support relating to such solutions (collectively the “Service”), made available on a number of different platforms.
These terms and conditions (the “Terms”) apply to all purchases of the Service from Etain.
Etain also offers consultancy services. Such services are governed by Etain’s standard terms and conditions for consultancy services (the “Consultancy Terms”).
By ordering and using the Service you (hereinafter the “Customer”) also accept that delivery of the Service is governed by these Terms. Accordingly, these Terms shall be considered an integral part of the agreement governing Etain’s delivery of Services to the Customer.
Etain and the Customer are hereafter collectively referred to as the “Parties”.
In the event of a conflict between these Terms and any other documents in agreed form specifying the scope of the Service and the terms thereof (e.g. in the form of offers from Etain accepted by the Customer, orders from the Customer accepted by Etain etc.), such other agreement documents shall take precedence over these Terms, unless otherwise is specified.
If there is uncertainty as to whether a service provided by Etain shall be governed by these Terms or the Consultancy Terms, the Consultancy Terms shall apply.
2.1 Etain Deliverables
The Service is comprised of making the relevant solutions available for the Customer, including services relating to maintenance and support of such solutions.
Etain shall ensure that the service level is equivalent to what can be expected of a standard equivalent good service in the market. Besides this, Etain makes no warranties, express or implied, as regards the Services except as agreed directly with the Customer.
Etain may perform work with development, implementation, training and other similar services relating to the solutions made available to the Customer. All such extra services shall be governed by a separate agreement and the Consultancy Terms.
2.2 Third-Party Deliverables
To the extent that third-party deliverables are included in the Services, a copy of the terms for the Customer's access to and use of third-party deliverables will be made available to the Customer upon request. The third-party supplier terms shall be binding on the Customer for the part of the Services being third-party deliverables.
Etain shall have no liability to the Customer for any errors in third-party deliverables. This entails that the Customer may not invoke any non-fulfilment of agreed quality requirements upon Etain if this is due to an error in third-party deliverables. This also applies to the loss or destruction of data.
In the case of errors in third-party deliverables, the Supplier will report the error to the third party and keep the Customer informed about the status of the error rectification.
2.3 Customer’s Obligations
The Customer shall contribute to facilitating Etain’s delivery of the Service by providing necessary information and resources.
Many of Etain’s solutions have certain hardware and software requirements. Ensuring access to the right hardware and software to be able to use the Service is the sole responsibility of the Customer. Etain may assist with implementing such hardware or software subject to separate agreement governed by the Consultancy Terms.
2.4 Establishment and Implementation
In the event Etain shall assist with establishing, training and / or other implementing activities for whole or parts of the Service, all such services shall be governed by a separate agreement and the Consultancy Terms.
2.5 Documentation and Training
The Customer will, as part of the Service be given electronic access to such standard documentation Etain usually includes on sale of similar Services.
2.6 Updates and Upgrades
Etain will update its software and solutions from time to time. All such standard updates shall, unless otherwise agreed, be made available to the Customer as part of the Service.
Etain will also continuously seek to upgrade its service offering (i.a. by introduction of new functionality). Increased license fees or other fees may apply for access to such upgrades.
Etain will in its sole discretion decide whether a change in software solutions shall be deemed an update or an upgrade.
The consideration for the Services will be agreed depending on the scope of the Services provided.
Unless otherwise specified, all prices are stated excluding value added tax, customs duties etc.
Unless otherwise specified, all prices are stated in Norwegian kroner.The Supplier reserves the right to conduct audits of the Customer’s use of the Service, in order to verify that the use is in accordance with the agreed consideration.
3.2 Terms of Payment
The Customer may pay for the Service on a monthly or yearly basis.
Etain will invoice for the coming period in advance, with 14 days payment notice. Invoices sent on a monthly basis will be sent on the first day of each month for provision of the Services in the coming month (invoice sent on 1 December for Services delivered in January the next year). Invoices sent on a yearly basis will be sent within December each year for the coming year (invoice in December year 2020 for Services in year 2021).
When the Customer has made necessary arrangements, Etain may submit invoices, credit advices and reminders in accordance with the Electronic Trading Format (EHF) that has been determined.
3.3 Late Payment Interest
If the Customer does not pay at the agreed time, Etain may claim interest on the amount which has fallen due for payment, in accordance with Act no. 100 of 17 December 1976 concerning interest on late payments, etc. (the Norwegian Late Payment Interest Act).
3.4 Payment Default
If overdue, undisputed consideration, with the addition of interest on late payment, has not been paid within thirty (30) calendar days of the due date, Etain may give the Customer written notice that the agreement will be terminated if settlement has not been made within thirty (30) calendar days of receipt of such notice.
Termination pursuant to this clause 3.4 may not take place if the Customer settles the overdue consideration, with the addition of late payment interest, prior to the expiry of the deadline.
The effects of termination pursuant to this clause 3.4 shall be the same as set out in clause 6.3.
3.5 Price Adjustments
The price for the Service may be adjusted by Etain at any time without cause. The Customer will be notified about such adjustments at least three (3) months before the price adjustment comes into effect.
4.1 What Constitutes a Defect
There is a defect in the Service if the Service, either in scope, availability, functionality or in any other way, deviate from the agreed requirements.
4.2 The Consequences of Defects
If there is a defect in a part of the Service that is built on HighQ, and the defect cannot with reasonable efforts be corrected by Etain by adapting the Service at the HighQ instance where the Service are used, Etain shall ensure that the defect is passed on to HighQ. No other sanctions are available such defects.
Defects due to Etain's own developed solutions shall be rectified by Etain within a reasonable time after Etain has been duly notified.
If there is a defect that leads to the Service being unavailable to the Customer for a period exceeding 5 consecutive working days, the Customer may terminate the agreement with Etain with immediate effect. The Customer can then demand a refund of what has been paid for the period from the time when the defect occurred.
No other sanctions for defaults may be made against Etain than those explicitly mentioned in this clause 4.2
4.3 Limitation of Liability
If the Customer, notwithstanding the provision in clause 4.2, should be entitled to compensation or other form of compensation from Etain, Etain shall in no case be liable for the Customer's loss of data and / or other form of information.
Furthermore, Etain shall only be liable for direct financial loss due to gross negligence or intent on Etain's part. Consequently, Etain, its consultants and other employees are not under any circumstances liable for indirect losses or consequential losses, including operating losses, loss of profit, loss of goodwill, etc.
Etain's (including Etain's employees, consultants and partners) total liability for the Customer's possible financial loss shall in any case never exceed the total amount paid by the Customer to Etain in the last 12 months before the damage occurred.
If an extraordinary situation should arise which makes it impossible for a Party to fulfill its obligations herein, and which under Norwegian law must be classified as force majeure, the other Party must be notified of this as soon as possible. The obligations of the affected Party shall be suspended for as long as the extraordinary situation prevails. The corresponding obligations of the other Party shall be suspended for the same period.
In force majeure situations, the other Party may only end the Agreement with the consent of the affected Party, or if the situation prevails or is expected to prevail for more than ninety (90) calendar days as of the date on which the situation arose, and in such case only with fifteen (15) calendar days’ notice. Each of the Parties will cover their own costs associated with ending the contractual relationship in a foce majeure event. The Customer will pay the agreed price for the part of the Service that was contractually delivered before the expiry of the agreement. The Parties may not present other claims against each other due to the expiry of the agreement in accordance with this provision.
In connection with force majeure situations, the Parties have a mutual disclosure obligation towards each other regarding all matters that must be deemed to be relevant to the other Party. This information must be provided as soon as reasonably possible.
The agreement regarding Customer’s purchase and Etain’s delivery of the Service is effective as from the day the agreement is entered into, at the latest on the day when the Service is made available to the Customer.
The agreement shall be in force and effect until it is terminated.
Each Party may terminate the agreement in whole or in part (e.g. by terminating parts of the Service only) at any time without cause by written notice to the other Party. Termination notifications to Etain may be sent to email@example.com.
Termination will have effect subsequent to the next month after the termination was notified (i.e. if a termination notice is received in March, the termination will have effect as from 1 May).
The Service will remain in full force and effect during the termination period.
6.3 Effect of Termination
After the termination period, the Customer will no longer have any right to access the Services being subject to termination.
To the extent Etain stores Customer Data (as defined below) on behalf of the Customer, the Customer must itself download and make copies of the Customer Data that the Customer wish to maintain before the end of the termination period.
Termination of the agreement with Etain will not affect Customer Data stored in the Customer’s own HighQ instance.
Etain may assist with transferring data to the Customer as consultancy services subject to a separate consultancy agreement governed by the Consultancy Terms.
Notwithstanding anything to the contrary herein, clauses 4.3 (Limitation of liability), 5 (Force majeure), 6 (Term and termination), 7 (Customer data), 10 (Intellectual property rights), 11 (Confidentiality), 12 (Marketing), and 14 (Dispute resolution) shall survive the termination of these Terms, regardless of cause.
7.1 Etain’s Use
Information received by or otherwise processed by Etain about the Customer or the Customer's relationships, including personal information and other data and information uploaded in or generated in the solutions made available as part of the Service (the “Customer Data”), shall, in the relationship between Etain and the Customer, be considered Customer’s property. Etain shall only have rights to access and use such data and information to the extent that it follows from these Terms or as otherwise agreed.
Etain is given access to the Customer Data to the extent necessary for Etain to provide the Services.
Etain may use subcontractors for certain parts of the Service (such as software from the supplier HighQ). Such suppliers will only be given access to Customer Data to the extent necessary to ensure that the Products function as intended.
By accepting these Terms, the Customer accepts that Etain uses the subcontractors that will apply to the relevant Services provided, even if such subcontractors are not specifically stated in these Terms or other agreement documents.
The Customer can always request an overview of which subcontractors are used, and the Customer can at any time demand that subcontractors are no longer used for specific Services. If removal of a subcontractor has consequences for the Services, Etain may terminate the delivery of the Products without further cause.
Etain shall keep Customer Data strictly confidential. Employees, consultants, subcontractors and others who deal with the Customer Data shall only do so to the extent necessary for Etain to be able to deliver the Products with the required functionality.
Upon Customer’s prior consent, Etain may use Customer Data to train algorithms and software for recognizing patterns in text, images and content in other forms. When training algorithms and software, Customer Data shall, to the extent technically possible, be anonymized, and in all cases kept strictly confidential. When training algorithms and software reasonable and proportionate measures shall be implemented to avoid the possibility of re-constructing Customer Data (in whole or in parts) from the results from algorithm trainings.
7.2 Etain’s Responsibility for Customer Data
Etain will take reasonable precautions with a view to preventing Customer Data from being lost or going astray, and with a view to making it possible to recover Customer Data that should be lost. Etain will further implement reasonable and proportionate measures to maintain the information security of Customer Data at a level that reflects the confidential nature of Customer Data.
Assistance with data lost due to circumstances outside Etain’s control shall be deemed a consultancy service to be delivered pursuant to separate agreement and the Consultancy Terms.
Etain shall have no other responsibilities for Customer Data beyond what is stated in this clause 7.2 and otherwise as required by mandatory law.
7.3 Deletion of Customer Data
Upon request from the Customer after termination of a customer relationship, Etain shall delete all information about the Customer stored by Etain. The obligation to delete Customer Data does not apply to information that has been routinely backed up or that is necessary for Etain to be able to comply with its own obligations, provided that all such information is kept strictly confidential and not used directly without the Customer's consent in Etain's business beyond what is necessary for Etain’s fulfillment of its own obligations, explicitly stated in these terms or otherwis
Etain will process all personal data in accordance with the Norwegien Personal Data Act (Nw: Personopplysningsloven). The Customer has the sole responsibility for ensuring that the personal data transferred to Etain is obtained and maintained by the Customer in accordance with the applicable privacy law regulations.
If a Service requires Etain to act as a data processor in accordance with the relevant privacy regulations, Etain’s standard data processor agreement must be signed by the Customer and returned to Etain.
Etain will take appropriate measures to address the information security requirements associated with the performance of the Service.If the Customer has specific requirements for how information security is to be safeguarded by Etain, the Customer may contact Etain for special arrangements.
For the term of the agreement the Customer receives the right to use the Service. Unless otherwise agreed, the right of use entails the right to use the Service for the Customer’s own business, including in the form of offering and / or making Customer products based on the Service available to the Customer's own customers and clients against payments. To the extent that a Service includes a solution template for use on the Customer's own HighQ platform, the right of use only implies the right to use it on the Customer’s own HighQ instances, and not on others' HighQ instances. Unless otherwise agreed, the right of use ceases upon termination of the agreement.
Etain retains all copyrights and other intellectual property rights in all parts of the Service, and in any results of updates and developments. This applies even if the Customer has been actively involved in the development of such updates and upgrades. Etain’s retention of intellectual property rights includes all rights to material (documents, process descriptions, design descriptions, drawings, figures, solution descriptions, concrete solutions, images, sound recordings, film recordings, data files, computer programs, software code and other copyrighted or otherwise intellectual property protected material) that form part of the Services. The same applies to ideas, concepts, models and the like that Etain includes in the Service.
Etain shall not in any way acquire rights to the Customer's trademark or other Customer-specific material that evidently has been prepared by the Customer independently of Etain.
The Customer shall refrain from and guarantees that others for whom the Customer makes the Products available, refrain from copying, decompiling or otherwise conducting reverse engineering of any part of the Service.
Etain shall keep all information received about the Customer or the Customer's relations strictly confidential. Etain shall ensure that all employees and consultants which are involved with a Service for Etain are obliged by similar confidentiality obligations. Etain shall further ensure that Etain's subcontractors are subject to confidentiality obligations that at least correspond to the obligations applicable for Etain as set out herein.
Etain may only share confidential information with consultants and employees of Etain to the extent necessary to fulfill the Service. This also applies to employees of Etain's partners, as well as to subcontractors that Etain acts on behalf of, or cooperates with in relation to delivery of the Service.
Etain may use subcontractors to deliver digital products and services (such as software from the supplier HighQ), where the supplier will be able to access certain confidential information, including any personal information. By accepting these Terms, the Customer also accepts that Etain makes use of the subcontractors that will be applicable to the specific Service, even if such subcontractors are not specifically specified in these Terms or other contract documents.
The Customer can always request an overview over the subcontractors used by Etain for a specific Service, and the Customer can at any time demand that certain subcontractors shall no longer be used for a specific assignment. If removing a subcontractor from a Service has consequences for Etain's ability to perform as agreed, the scope of the Service shall be changed accordingly. Etain shall have no liability for such changes in scope, and the Customer shall pay market price to compensate increases in scope due to such changes.
In cases where external advisors are engaged by or via Etain, the Customer is deemed to have accepted that Etain may transfer necessary information, including any personal information, to the relevant adviser or subcontractor for the fulfillment of the Service. This also applies if such advisors are established outside the EU / EEA area and applies regardless of whether the external consultant is engaged by Etain, by the Customer itself or anyone acting on behalf of the Customer.
Unless otherwise agreed, Etain may use the Customer's name and logo, without mentioning the specific content of the Services performed for the Customer, as reference on Etain’s website and in connection with sales and marketing, including when submitting tenders. Before the Customer's name may be used in news articles or similar, Etain will ask for the Customer's consent.
Etain may use e-mail to communicate in relation to performance Services, also for the transmission of confidential information. The use of encryption must be specifically agreed.
All Service deliveries by Etain are subject to Norwegian law.
In the event of a dispute the Parties shall seek to resolve the dispute in good faith.
Oslo District Court is agreed legal venue, however such that Etain may always choose to submit a dispute to the ordinary courts at the Customer's legal venue.