Online Terms of Service, Software as a Service (SA)
1. DEFINITIONS AND INTERPRETATION
In this Software as a Service Agreement (hereinafter the “SA”), except where the context requires otherwise, the following words shall have the following meaning. The Services constitute either parts of, or the whole, application provided under the domain onecom.no or another designated web-site or IP-address, and ancillary online, or off-line, products and services provided, or distributed, by One Communication AS. The licensee, means the customer who has been given an access right to the One Communication Services. License, means the right for the licensee to use the Services via the Internet and in a Web-interface, not the right to have a copy of the Services on its servers/computers. The licensor means the legal entity that owns the right to resell the Services and is the contract part in this agreement. Invoicing, means all types of handling payments. An electronically sent invoice, or a transaction through third party payment services, eg. Credit card payment or online payment companies.
2. ENTRY INTO FORCE
This SA shall enter into force when it is signed or accepted by both the licensor and licensee and has reached the licensor. By accepting the Licensor’s general business terms the Licensee also accepts this SA. The license shall remain valid for as long as the license fee and the ongoing monthly subscription are paid according to the SA. The Licensor is obligated to offer the license for the prepaid period of the licensee. Licensor may amend the content in this SA at any time. The revised version will be effective at the time it is posted on the website. In addition, if the revised version includes a substantial change, the licensee will be informed by an electronically notification. The Agreement is an important document which licensee must consider carefully when choosing whether to use the Services. This license replaces all former SAs related to the Service.
3. THE LICENSE
The licensee is hereby granted a non-exclusive, non-transferable license to the Services. When accepting this SA, the licensee also accepts the number of users, the licensee fee and specifications and Services that are required. The content of the Service is always subject to the discretion of the licensor, which is entitled to change the content without notice. The licensor have the right to change functionality in the Services when modules are upgraded. Transfer of the license/SA is possible only with the approval of the licensor. Written notice of transfer must be given to the licensor and the licensee will receive a written reply pursuant to which, if accepted, the new licensee will continue the original licensee’s monthly fee.
4. LIMITATION OF LIABILITY
Licensor’s liability, if any, and licensee’s sole and exclusive remedy for damages for any claim of any kind whatsoever arising out of, or related to, this SA, shall not be greater than the actual fees paid for the Services with respect to which such claim is made, during the immediately preceding six (6) month period prior to the filing of the claim. Under no circumstances will licensor be liable to licensee, or any third party, for any consequential, special, indirect, incidental or punitive damages of any kind. Including, but not limited to, lost profits, lost data, business interruption, loss of business reputation or goodwill, or the cost of procurement of substitute goods or services, even if licensor has been advised of the possibility of such damages. This shall also include any system errors in the Services, user documentation and incorrect use of the Service. The licensee shall bear financial responsibility for any additional work that must be carried out due to possible errors within the Services. The licensor reserves the right to rectify any potential errors in the Services.
5. WARRANTY DISCLAIMER REGARDING SERVICES
Licensee understands, and agrees, that Services are provided “as is” and licensor expressly disclaims all warranties of any kind, expressed or implied, including without limitation any warranty of merchantability or of fitness for a particular purpose. Licensor makes no warranty or representation regarding Services, any information, materials, goods or Services obtained through Services, or that Services will meet licensee’s requirements, or be uninterrupted, timely, secure or free from error or defect. Licensor disclaims and excludes any representations or warranties that the Services are compatible with any combination of Services or software not furnished by licensor which licensee or any Customer may choose to utilize with the Services. Licensor do not warrant that hardware provided by the Licensee will be suitable to use with ancillary software and off-line components (OC iiCore, OC InStore, OC Expo Software etc.).
6. UP-TIME (SLA)
The licensor guarantees an up-time of ninety nine percent (99.0%) per month. The availability of the service is measured on the outer gateway to One Communication’s router towards the internet. The up-time, is defined as the availability to log on to the online application. There will be a possible claim to compensation from 10% of the monthly allowance per every 1% down-time surpassing the guaranteed ninety nine percent (99%) per month. The compensation, is set to a maximum of thirty percent (30%). The conjuncture of down-time in regards to maintenance of the website is Thursday 4 AM to 8 AM (GMT +1) and is notified one week in advance if performed. Maintenance time is not included in the calculation of availability. Lack of availability, is measured from the time notification is given by licensee of the lack of availability to the support department of the licensor. Up-time guarantees, replacement and maintenance related to ancillary software and off-line components (OC iiCore, OC InStore, OC Expo Software etc.) are priced separately.
User support is available on weekdays between 9 AM and 5 PM (GMT +1) (Primary period). Support is given by e-mail or by phone. For telephone support, see the telephone numbers on www.onecom.no. One (1) hour of phone/email support per month is included in the Agreement. This support is valid for 1-2 super users employed with the licensee. Additional super users, and support level, against additional pricing. These super users are responsible for passing on potential errors/questions. Phone support applies to technical errors, or simple user support, where the help files are not sufficient. When support exceeds 10 minutes in duration, it is generally regarded as training. The licensor reserves the right to invoice time spent, or refer the user to training courses. Any problems with logging into the Services outside Primary period, shall be forwarded to support @onecom.no. Support may be handled by a partner of licensor. See partners support agreement for details. Licensor is not responsible for any partner support, or terms, that differ from terms stated in this SA.
8. SETUP AND TRAINING
Creation of a new company client inside the Services includes the following: Creation of a new client with the named users, usernames and passwords. Company has to estimate 2-5 workings days for a new company client to be set up in addition to implementation of new design, functionality and modules. If the licensee needs assistance to import data, this will be charged on the basis of the time involved to perform importation thereof.
Setup of licensee may include mandatory online training-courses in relevant themes and modules. Licensee and licensor may agree upon other forms of training. This kind of training will give rise to additional costs. The complete fee for the setup, shall be invoiced as soon as the parties have signed or accepted this SA.
9. MONTHLY FEE
The Monthly fee includes: Hosting of the Services, backup of data and access to future upgrades and maintenance of the Services. Extensive future upgrades may come with additional setup costs.
10. SYSTEM REQUIREMENTS
Modules included in online Services are available in both Microsoft Windows OS and Apple IOS with the most common browsers of latest versions. Much of the functionality can also be used on handheld devices with smaller screens and other control devices. Ancillary software and off-line components (OC iiCore, OC InStore, OC Expo Software etc.) minimum requirements are Microsoft Windows 7 (64bit), 4Gb RAM and i5 processor or similar. It is highly recommended to contact licensor prior to hardware purchase to ensure hardware compatibility and sufficient capacity to run the applications.
11. DISK SIZE AND BANDWIDTH
There is one (1) GB of disk size included in this SA. Any additional one (1) GB storage space has an extra cost of NOK 100 per month. Licensors's service is a shared hosting service, which means that multiple Licensees web sites are hosted from the same server and share server resources. The service is designed to meet the typical needs of small to medium sized businesses in Norway. It is NOT intended to support the sustained demand of large traffic intensive web sites or non-typical applications better suited to a dedicated server. Licensors's will make every commercially reasonable effort to provide additional resources to licensees, including moving Subscribers to dedicated servers for additional cost as necessary. However, in order to ensure a consistent and quality experience for all licensees, an additional fee will occur for websites with more than 33 Gb of monthly traffic volume.
It is the licensor’s responsibility to back-up the data on a daily basis and store the backup for three (3) days. The backup service includes restoration of data in the event of a potential server crash, or a loss of data, caused by the system. The licensor warrants that the service does not entail the risk of losing data structures, or data beyond one backup interval. Any failure of back-up routine is the responsibility of the licensor.
13. THIRD PARTY
By accepting third party ancillary services, licensee accepts that the third party is granted access to licensee’s data through the licensors API. Licensor is not responsible for third party operating procedures, support, customization or development. Licensee is therefor strongly advised to read and accept any third party terms and conditions for the ancillary service. By accessing third party services included in the Service, licensee assumes the responsibility for the payment of these third party services. The third party services will be charged on the invoices from licensor, or third party, a separate invoice, or gathered at a later time depending on the third party services used. The Licensor is not responsible for commitment entered into by a third party that could represent an obstacle to the performance of this Agreement.
14. E-COMMERCE AND E-MAIL
OneCom e-commerce is a module inside the Service, where the licensee has the possibility to market and sell their services. Licensor takes no responsibility for whether the orders that flow through OneCom e-commerce are real and / or the customer is credit worthy. Licensor takes no responsibility for the licensee to comply with their payment and delivery terms. Licensor is only a facilitator and cannot be held liable for any direct or indirect loss on the purchase, or sale, in OneCom e-commerce. Licensor must pre-approve any store that will be created in the OneCom e-commerce. If the store sells and markets, after licensor opinion, inappropriate products / services or products / services that violate the law and / or Licensors ethical guidelines, Licensor reserves the right to immediately remove the store. If a store does not comply with their trading conditions or the minimum conditions that Licensor believes should apply for a store, the store may be removed after a written warning. The store will have 1 week to repair the relationship before the store is removed. If licensor considers the infringement as gross lack of supply, or delivery conditions, the store can be removed immediately. Licensor cannot guarantee delivery of email to Licensees customers. Email may be unavailable for reasons beyond licensors control, such as, but not limited to, activated filters or changes made by the recipient.
15. DATA AND COPY RIGHTS
The licensee is the owner of the data, while the licensor is responsible for the distribution of the data. All data entered by the licensee is their property and they have full ownership of the data. The Licensor may, upon prior notice to the licensee, delete data considered harmful for the system or data that is illegal. The source code, design and other aspects of the system are considered the licensor’s property and only the licensor has the ownership of it. The licensee shall not edit, copy, disassemble, decompile, resell or in any other way distribute the Services absent a written agreement with the licensor. If the licensee violates these rights, and the licensor as a result of the violation suffers loss or licensee obtains undue advantage, the supplier may request that the licensee compensate and hold licensor harmless from any direct or indirect loss arising. Any improvements or tailoring of the Services according to the licensee’s needs will be considered the licensor’s work and the copyright will remain with the licensor.
17. FORCE MAJEURE
In case the implementation of this SA is partially or completely prevented, or is hindered to a substantial degree by conditions beyond the control of the parties, the duties of the parties shall be suspended to the extent the conditions are relevant, and for such a period as the conditions continue. These conditions include, but are not restricted to, strikes and lockout and each condition that Norwegian Law would consider Force Majeure or that is beyond the control of the parties. However, either party may terminate this SA if the case of the force majeure makes it particularly burdensome to maintain the Agreement.
If the licensee fails to perform any of the provisions of this SA, the licensor can cancel the SA with immediate effect. Non-payment to the licensor will in all cases be seen as a failure to perform the SA and will result in immediate cancellation of the SA (and access to the Service will not be granted). If the breach is a result of non-payment, the Service may be re-established when the licensee pays the unpaid invoice plus an extra invoice for the next period.
The term of this SA is thirty-six (36) months, with automatically renewal for the same period of time. The terms for additional modules (add-ons) is equal to the initial terms of this SA. The licensee will be invoiced in advance for a default period of three (3) months or for one (1) year if the amount is below NOK 2.000 per month. Invoices on paper will have an additional invoice fee.
20. INVOICING AND TERMINATION
The invoiced period shall start the day this SA is accepted. All invoices from licensor will be electronically sent. Decrements of modules in the preliminary term will take effect from the first invoice in the succeeding term. Additional modules will be invoiced from the date the purchase is accepted. The licensee will be invoiced in advance for a default period of three (3) months, or for one (1) year if the amount is below NOK 2.000 per month. The prices are indexed per 01.01 of each year in accordance with the Norwegian consumer price index or any other index super seeding the foregoing. If an indexation regulation is not made on this date, the licensor retains the right to index the amount for multiple periods at a later date. The licensor have the right to change all prices upon giving three (3) months’ notice. Licensee may terminate the SA with three months prior to the renewal of the term of this SA.
21. EXPORT OF DATA AT TERMINATION
If the SA is terminated and the licensee wishes licensor to help exporting data, this will be invoiced separately. The export of data will be charged as a whole as consulting time at the prevailing hourly rate. The licensor has no obligation to store data after the pre-paid period.
Licensee agrees that the Licensor can refer licensee’s use of the Services in marketing activities and label any front/back-end Service with hyperlink text (eg. Developed by One Communication as), unless otherwise agreed.
23. DISPUTES AND GOVERNING LAW
This Agreement is governed by Norwegian law. In case of disagreement between the parties as to the performance of this Agreement, the parties undertake to keep a conciliation meeting at eight days’ notice where the parties’ advisors, if any, will participate; the purpose of the meeting is to open negotiations with a view to solving the dispute. If the conciliation meeting has been held without any agreement between the parties, either party is entitled to take legal action. Any disagreement or dispute between the parties, as to the interpretation or scope of this Agreement, is to be settled in accordance with the rules governing the hearing of cases in the Norwegian Arbitration Act. Oslo District Court shall be the competent court.
Last edited: October 21, 2015