THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF LEDIDI SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF LEDIDI SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY, NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Ledidi’s direct competitors, meaning companies targeting the same markets as Ledidi with solutions to the same problems, are prohibited from accessing the Services, except with Ledidi’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Accesses as described above are considered a breach of the Agreement.
This Agreement was last updated on 14th December 2020. It is effective between Customer and Ledidi as of the date of Customer accepting this Agreement.
“Affiliate” any subsidiary or subsidiary undertaking of the Client, parent undertaking of the Client, any subsidiary or subsidiary undertaking of such parent undertaking
“Agreement” means these Terms and Conditions and any applicable Order Form(s)
“Content” means information obtained by Ledidi from publicly available sources or its third-party content providers and made available to Customer through the Services, pursuant to an Order Form, as more fully described in the Documentation
“Customer” : If the customer is an individual, the “Customer” means the individual accepting this Agreement on his or her own behalf. If the customer is a company or other legal entity, the “Customer” means the company or other legal entity for which the individual accepting this Agreement is acting, and Affiliates of that company or entity (for so long as they remain Affiliates) which have been entered into Order Forms.
“Customer Data” means electronic data and information submitted by or for Customer to the Services
“Documentation” means each Order Form, these Terms and Conditions and any service description or user guide made available by Ledidi
“Free Services” means Services that Ledidi makes available to Customer free of charge
“Normal Communication Channels” means the online channels through which Ledidi normally communicates important information to its customers
“Order form” means the subscription order form
“Personal Data” means information relating to a natural person as such term is defined by the applicable Privacy Laws, including the General Data Protection Regulation (EU) 2016/679 (GDPR);
“Services” means all the products and services provided by Ledidi
“Ledidi” means the Ledidi AS, a limited liability company organized under Norwegian law with BRN 917137137
“Subscribed Services” means Services that Customer or its Affiliates subscribe to under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“User” means the individual accepting these terms on his or her own behalf. If the Customer is a legal entity, the “user“ means an individual who is authorized by Customer to use a Service, for whom Customer has purchased a user subscription in accordance with an Order Form.
“Parties” means the Customer and Ledidi (and “Party” shall mean either one)
“Privacy Laws” means all laws and regulations regarding data privacy and transmission of Personal Data that apply to Ledidi provision of the Services to Customer (e.g., storing and processing Customer Data in connection with the Service)
“Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide
“Service Term” means the Initial Subscription Period together with any subsequent Renewal Periods.
Provision of Subscribed Services
Ledidi Prjcts is an end-to-end software solution designed for research. The capabilities of this license are; Project Management, Data Entry Management, Analysis and Statistics and Data Presentation.
- Project Management includes functionality for user account management, project access management, project definition and project cooperation.
- Data Entry Management includes functionality for variable definition, data import and export, data entry search and manipulation.
- Analysis and Statistics includes functionality for dataset analysis, filtering of data, descriptive statistics and statistical tests.
- Data Presentation includes functionality for generating and exporting diagrams and tables.
- PROMs (Patient-reported outcome measures), meaning sending questionnaires to patients, and using that to measure the patients’ health.
Ledidi will (a) use reasonable skill and care to ensure that the Subscribed Services are available to Customer pursuant to this Agreement, and the applicable Order Form and Documentation, (b) provide applicable Ledidi support for the Subscribed Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Subscribed Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Ledidi shall attempt to schedule outside the core time (from 8.00 am until 4.00 pm on working days CET) and in such a way that the accessibility of the affected Service is impacted as little as possible, and (ii) circumstance that according to the Norwegian law is considered “force majeure” (see section 14.3). The Customer acknowledges and agrees that the Subscribed Services may be subject to limitations, failures, delays and other problems inherent in the use of facilities accessed across the Internet and that, if necessary, maintenance may also be carried out during the core hours. Such activity shall not constitute a breach of this Agreement.
Ledidi may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Ledidi, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Ledidi will not be liable to Customer or any third party for such termination.
Protection of Customer Data
Throughout the term of this Agreement, Ledidi will maintain reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by any of the Subscribed Services; Ledidi will be responsible for unauthorized access and damage to, and for unauthorized deletion, destruction and loss of, Customer Data solely to the extent arising from Ledidi’s breach of its obligations under this Agreement. Where applicable, Ledidi encourages Customer to make use of available backup/export options. Ledidi deploys and operates its software at a third-party data centre and services are provided by Amazon Web Services (AWS). The infrastructure that AWS provides is designed and managed in alignment with security best practices and recognised IT security standards.
Customer Data Export
It is the Customer’s responsibility to extract all Customer data before the end of contract. Regardless of the basis for expiration or termination of this Agreement, Ledidi will not be obligated to retain any Customer Data for longer than ninety (90) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing. In the event of termination of the Agreement by Ledidi caused by the Customer’s material breach of the Agreement (sections 12.3 and 12.4), Ledidi shall have the right to delete all Customer Data with immediate effect.
Compliance with Privacy Laws
Each Party warrants that it shall comply at all times with its obligations under the applicable Data Privacy Laws in respect of any Personal Data processed by it. The provision of the Subscribed Services may require Ledidi to process Personal Data on behalf of the Customer. Such processing of Personal Data is regulated by the Ledidi Data Processing Agreement. Ledidi will only use Customer Data in the manner permitted by this Agreement and all applicable Privacy Laws; provided, however, that: (a) Customer hereby authorizes Ledidi to use Customer Data solely to provide the Subscribed Services to Customer and otherwise meet Ledidi’s obligations under this Agreement, including engaging sub processors and contractors to provide the Subscribed Services to Customer in accordance with this Agreement (Ledidi remains liable for such sub processors' and contractors’ compliance with this Agreement); (b) Customer hereby warrants that, to the extent required by Privacy Laws applicable to Ledidi’s provision of the Subscribed Services to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under Privacy Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 3.1(a) and to use the Subscribed Services in the manner contemplated by this Agreement.
USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Order Form or Documentation, (a) Subscribed Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
Subscribed Services and Content are subject to usage limits specified in Order Forms and Documentation.
Customer will be responsible for (a) Users’ compliance with this Agreement, Documentation and Order Forms (b) for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by Ledidi), (c) complying with all laws and regulations applicable to Customer’s use of the Services. Customer also must (a) notify Ledidi promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Ledidi promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Services.
The Services shall only be used for the Customer’s own individual purposes or if the Customer is a legal entity the Service shall only be used for internal purposes and only for named users whose identity has been provided to Ledidi as set out in the individual Order Form. Customer must not, without Ledidi’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Services, except to the extent expressly permitted by this Agreement (b) creation of any modifications or derivative works of the Services; (c) reverse engineering of any of the Services; (d) gaining of unauthorized access to any of the Services or their related systems or networks (for example, by impersonation of another user of the Services or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Services or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; or (g) sending, storing or use of any infringing, obscene, threatening, libellous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customers must also use reasonable security measures to access the Services, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Services. Ledidi also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Services (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.
If the Customer is a company or a legal entity, Ledidi reserves the right to conduct an audit of the Customer’s use of the services, including by reviewing relevant books and records, in order to verify that the consideration paid is in accordance with the Agreement in terms of the number of named users and other conditions related to compliance with the terms of the Agreement. Such audits shall be notified at least 30 days in advance and shall be conducted with the least possible inconvenience to the Customer. The parties bear their own costs related to the participation in such audits. If the audit reveals that the Customer has more real users than the number of subscribed named users, Customer is liable to pay a fee equal to twice the fee which would have been invoiced had the Customer obtained the correct number of named users. In such an event, Customer shall bear Ledidi’s costs related to the audit.
THIRD PARTY PROVIDERS
The Customer acknowledges that Ledidi uses third party providers to provide products, Services and facilities such as software, hosting of the Services and access to the internet pursuant to telecommunications links which may contain restrictions on use, ownership and/or licensing of IPR or other proprietary rights. When subscribing to Services, the Customer is not purchasing a copy of, or license to, any third-party software used to deliver the Services. In the event a third-party claim that a Subscribed Service in whole or partly infringes the third party’s rights, Ledidi shall obtain the right for the Customer to continue using the Subscribed Service or replace the infringing elements in the Service with equivalent or similar functionality. This shall be done without additional cost or operational disturbance for the Customer. If Ledidi finds that none of these alternatives can reasonably be used, Ledidi can make such other changes in the Service as it deems necessary.
The Services are delivered via a third-party cloud provider. Ledidi reserves the right to change cloud providers at any time. However, in such an event The Customer will be given a minimum three months’ notice, in order to allow the Customer to evaluate the technical and legal effects of such a change. The Customer acknowledges on its own behalf that the Services are provided via the Internet and that the Customer has the necessary equipment, software and other arrangements/agreements that are required to establish a connection to the Internet, as well as sufficient bandwidth for the Services to run without the user experience being impeded. Ledidi can update these requirements by notifying the Customer. Ledidi makes no representation, warranty, guarantee and/or commitment and shall have no liability or obligation whatsoever in relation to any third-party facilities or websites. Any contract entered into by the Customer with any third party and/or any use made of any third-party facility or website is between the Customer and the relevant third party, and not Ledidi.
FEES AND PAYMENTS
The Fees payable for the Subscribed Services are set out in the Price overview communicated from Ledidi. The prices may be adjusted by Ledidi annually. Any price adjustments will take effect from the next invoicing period after the announcement of the new price on the webpage.
Customer must pay all fees and charges to Ledidi, in accordance with this Agreement (“Fees”).
Except to the extent otherwise expressly stated in this Agreement or in an Order Form:
- All obligations to pay Fees are non-cancellable and all payments are non-refundable;
- Customer must make all payments without setoffs, withholdings or deductions of any kind;
- If the Customer is an individual the Customer must pay up-front by credit card for all annual Service Terms according to the ordering procedure when ordering a subscription.
- ● If the Customer is a company of a legal entity the Customer must pay all Fees due under all Order Forms up-front for each annual Service Terms within thirty (30) days after Customer receives each invoice (invoices are deemed received when Ledidi emails them to Customer’s designated billing contact); and all payments must be in the currency denounced in the Order Form.
In accordance with each Order Form: (i) Ledidi charges and collects in advance the fees for use of the Subscribed Services based on the Services subscribed to by Customer, and Customer’s contracted usage volume(s) for the Subscribed Services (ii) if Customer’s use of the Subscribed Services exceeds the contracted usage volume(s) specified in the applicable Order Form, Customer will pay the additional usage-based fees as described in such Order Form.
Except to the extent otherwise expressly stated therein, if an applicable Order Form provides for payment via credit card or electronic money transfer (e.g., ACH), Ledidi is permitted to process such payment on the date of Ledidi invoice and any renewal subscription term(s) as set forth in section “12.2 Term of Purchased Subscriptions” below.
Ledidi’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms. The Customer is responsible for paying all such taxes, levies, or duties.
Norwegian Customers will have to pay VAT in addition to the Fees. Any non-Norwegian Customers will be billed excluding VAT.
Customer Contact Information
If the Customer is an individual the Customer will provide Ledidi with its full name, address, email address in the Order Form for any Subscribed Services. The Customer shall update this information within thirty (30) days after any changes.
If the Customer is a company of a legal entity, the Customer will provide Ledidi with accurate billing and other contact information for all Subscribed Services listed on each Order Form at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. The Customer shall update this information within thirty (30) days after any changes, via email to Ledidi’s Accounts Receivable team at email@example.com for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting passwords). The Customer shall also provide and at all times keep updated a list of the named users who shall be authorized to use the service.
Consequences of Non-Payment
If Customer fails to make any payments required under any Order Forms, then in addition to any other rights Ledidi may have under this Agreement or applicable law and without limiting Ledidi’s rights or remedies;
a. Customer will owe Ledidi an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);
b. Ledidi will, to the extent permitted by applicable law, be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and
c. Ledidi may temporarily suspend Customer’s access to the Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination in accordance with section 12.3 Termination of Agreement. The Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension based on such Customer delinquency.
Reduction of the Subscription Fee
If one or more of Subscribed Services is inaccessible for more than 24 hours during a period of one calendar month, and this is caused by errors in Ledidi’s environment, equipment or software, the Customer can demand a proportional reduction of the subscription fee for the affected service for the relevant calendar month. Other circumstances, e.g. errors and inaccessibility caused by communication lines, third party software or platform providers (e.g. AWS), external elements or the Customer or the users’ use, equipment or software cannot be used as a basis for requesting reduction of the subscription fee.
The Customer is entitled to claim compensation for direct documented loss that suffered as a result of Ledidi’s breach of the Agreement. Ledidi is not liable for indirect or consequential losses, such as lost profit, losses caused by delayed start or disruption of production, deprivation or losses caused by lost data or third-party claims. The maximum compensation during a 12 months period is under all circumstances limited to the subscription fee for this period. Any reduction of the fee that is calculated due to section 6.5 Reduction of the Subscription fee shall be deducted from the compensation.
Changes to the Price and Subscription Plans
Ledidi may change subscription plans and fees from time to time; however, any price changes or changes to Customer subscription plans will apply to subsequent billing cycles following notice of the change(s) to Customer.
PROPRIETARY RIGHTS AND LICENSES
Ownership of the Services
Ledidi and its licensors retain any and all rights, title and interest in and to the Services (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. The Customer’s right to use the Services is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to the Customer are reserved and retained by Ledidi and its licensors.
Ownership of Customer Data
As between the Customer and Ledidi, (a) all Customer Data is the property of Customer, and (b) the Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.
Grant of Rights
Subject to the terms and conditions of this Agreement, Ledidi hereby grants to the Customer the non-exclusive, non-transferable, worldwide, right to access and use the Subscribed Services during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s).
License by Customer
The Customer grants to Ledidi a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Ledidi’s or its Affiliates’ Services.
The Customer accepts that Ledidi may refer to the Customer’s use of the Services in their general marketing activities, unless the Customer specifically and in writing decides otherwise.
8.1. Definition of Confidential Information
“Confidential Information” means all information and materials disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Customer includes Customer Data; Confidential Information of Ledidi includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement or as permitted by this Agreement.
Each Party shall hold the other Party's Confidential Information in confidence and shall not make the other Party’s Confidential Information available to any third-party or use the other Party's Confidential Information for any purpose other than to perform its obligations under this Agreement. The obligations of confidentiality set out in this section 8. shall apply indefinitely.
As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such confidential information is retained.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Ledidi further represents and warrants that: (a) The Subscribed Services will perform substantially in accordance with the relevant service description found in the Documentation, (b) it will make reasonable efforts to notify Customer, at least thirty (30) days in advance via Ledidi’s Normal Communication Channels, of any scheduled changes Ledidi believes are likely to have a material, adverse impact on Customer’s use of the Subscribed Services (“Material Changes”). (As a multi-Tenant SaaS vendor, Ledidi reserves the right to make enhancements and other changes to their Services, including occasional deprecation and removal of certain features and functionality, subject to the Service warranty in Section 9.3
If Ledidi breaches any warranties in this Section 9., the Customer’s exclusive remedy and Ledidi’s sole obligation will be for Ledidi to make reasonable efforts to correct the non-conformity or, if Ledidi is unable to correct the non-conformity within sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any annual fees prepaid under such Order Form(s) that are unused as of the termination effective date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICES, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) LEDIDI AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULTS, OR BE TIMELY OR SECURE. LEDIDI AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY LEDIDI. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. LEDIDI IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY LEDIDI. THE CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICES AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT OR AN ORDER FORM.
Indemnification by Ledidi
In the event of a third-party claim against the Customer and this is due to circumstances that are within the control of Ledidi, Ledidi shall, at its own expense, handle the case also on behalf of the Customer. From the time Ledidi takes over the case, the Customer shall assist Ledidi. Ledidi shall be reasonably compensated for such assistance. The Customer shall not act on its own in such cases, unless the parties agree otherwise. The Customer cannot make any other claims towards the Ledidi based on the consequences of legal defects.
Indemnification by Customer
The Customer shall indemnify and keep indemnified Ledidi against all claims, actions, proceedings, losses, damages, expenses and/or costs (including without limitation court costs and reasonable legal fees) suffered or incurred by Ledidi arising out of or in connection with the Customer’s breach of this Agreement.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: EXCEPT FOR SUMS DUE LEDIDI UNDER APPLICABLE ORDER FORMS, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.4 (USE RESTRICTIONS) AND 10 (MUTUAL INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY OR RESPONSIBILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORMS WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY; EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.4 (USE RESTRICTIONS) AND 10 (MUTUAL INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY LOSS OF PROFITS, REVENUE, OPPORTUNITIES, ECONOMIC ADVANTAGE, GOODWILL, DATA OR USE, OR FOR ANY INDIRECT, CONSEQUENTIAL, HYBRID, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMAINING AVAILABLE REMEDY FAILS ITS ESSENTIAL PURPOSE; AND THE TERMS OF THIS SECTION 11 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE PROVISIONS OF THIS SECTION 11 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND LEDIDI, AND THE FEES CHARGED FOR THE SERVICE ARE BASED ON THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
TERM AND TERMINATION
Term and Termination of Agreement, Order Forms and Individual Modules
This Agreement commences on the date the Customer first accepts the initial Order Form for subscription to Ledidi PRJCTS and continues until all Service Terms hereunder have expired or have been terminated. The initial Service Term is one year. The initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”
The term of each Order Form or individual Modules shall be as specified in the applicable Order Form, or if not specified therein, follow the same term as the Agreement.
PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS: Unless otherwise set forth in the applicable Order Form, or unless the Agreement, the Order Form or Individual Modules are terminated in accordance with the terms of this Agreement, the Agreement, each Order Form and Individual Modules will automatically renew for additional one-year Service Terms, unless either party gives the other written notice (email acceptable) within three months’ before the end of the relevant Service Term.
Except as expressly provided in the applicable Order Form, (i) termination of an individual Order Form or Module will not affect the validity of the Agreement or other Order Forms, while termination of the Agreement will also have effect for all existing Order Forms and Modules, and (ii) renewal of promotional or one-time priced subscriptions will be at Ledidi’s applicable list price in effect at the time of the applicable renewal.
Termination for Cause
Either Party may terminate the Agreement, or any Order Forms or subscription for any Modules, for cause (i) upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach, 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.
EFFECT OF TERMINATION
Effect of Expiration or Termination of Agreement or Order Form(s)
The sections titled “Free Services”, “Fees and Payment”, “Proprietary Rights and Licenses”, “Confidentiality”, “Warranty Disclaimers”, “Mutual Indemnification”, “Limitation of Liability”, “Effect of Termination” and “General” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Ledidi retains possession of Customer Data. The applicable Order Forms may identify additional terms that will survive any expiration or termination of this Agreement.
Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification and Warranties): (a) if the Customer terminates an Order Form and/or this Agreement for uncured material breach in accordance with this Agreement, the Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if Ledidi terminates an Order Form and/or this Agreement for uncured material breach in accordance with Section 12.4, all amounts owed by the Customer thereunder will become due and payable.
Ledidi reserves the right to make enhancements and other changes to the available Services, including occasional deprecation and removal of certain features and functionality, subject to the Service warranty in Section 9.2(b). Ledidi may with 3 months’ notice and with the effect from the beginning of the next term, change the terms and conditions of this Agreement. The Customer agrees that Ledidi may, in its discretion introduce, amend, replace or terminate any Service or Plan. Ledidi shall provide: (i) information regarding any matter which it reasonably considers to be non-material on the Website; (ii) information regarding any matter which it reasonably considers to be material, in writing to the Customer only if the Services affected are Services subscribed for by the Customer.
Choice of Law and Dispute Resolution
The Agreement is governed by Norwegian law. The parties shall attempt to solve any dispute by negotiations. If such negotiations do not result in an amicable settlement, the dispute shall be resolved by arbitration according to the Norwegian act on arbitration. The seat of arbitration shall be in Oslo.
If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, the affected Party’s performance will be excused for the resulting period of delay or inability to perform. Such causes include but are not limited to, war, riots, labour unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks and any other circumstance that according to the Norwegian law is considered “force majeure”. Each party is entitled to terminate the Agreement with immediate effect upon written notice to the other Party if one and the same force majeure situation has lasted for a consecutive period of 90 days.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties. Each of the provisions of this Agreement shall be construed as a separate and independent provision and shall not be limited or restricted by any other provision.
Ledidi is entitled to transfer its rights and obligations pursuant to this Agreement to a third party. The Customer shall not, without the prior written consent of Ledidi, assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under the Order Form or the Terms and Conditions.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Entire Agreement and Order of Precedence
This Agreement (and the documents specifically referred to in it) constitutes the whole agreement between the Parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Order Form or the Terms and Conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in or referred to in this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. If there is an inconsistency between any of the provisions of these Terms and Conditions or the Order Form, then the Order Form shall prevail.