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Permitted Use: Customer may access the Service during the Proof of Concept period. Customer may use the Service and any related on-line documentation made available by KDI (“Documentation”). Only persons authorized by Customer (“Users”) may access the Service. Customer will inform Users of the relevant terms of the Agreement and be responsible for their compliance with the relevant terms. Customer and Users will not use the Service or Documentation to: (a) bring an intellectual property infringement claim against KDI; or (b) create any offering that competes with KDI. Customer’s right to use the Service is nonexclusive, non-assignable and non-transferable.
Related Services: To any related additional consultancy services (“Consultancy Services”) provided by KDI, KDI grants Customer a non-exclusive, non-transferable, non-assignable, royalty-free license to use any computer code and/or documentation delivered as part of the Consultancy Services.
No Warranty: KDI PROVIDES THE SERVICE AND, IF APPLICABLE, THE SYSTEM, CONSULTANCY SERVICES AND/OR ANY RELATED RESULT OF THE SERVICE “AS IS.” KDI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING.
Limitation of Liability: NEITHER CUSTOMER, KDI, NOR KDI’S LICENSORS ARE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR RELIANCE DAMAGES (ARISING IN TORT, CONTRACT OR OTHERWISE), EVEN IF THEY HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. KDI AND KDI’s LICENSORS ARE NOT LIABLE FOR ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY. THE PARTIES MAKE THESE EXCLUSIONS IN CONSIDERATION OF THE SERVICE PROVIDED UNDER THE AGREEMENT. This section does not apply to Customer’s violation of KDI’s intellectual property rights. Some jurisdictions do not allow limitations of liability or exclusions for incidental or consequential damages, so certain provisions of this section may not apply; however, they apply to the greatest extent permitted by applicable law.
Ownership; IP, IPR and title: KDI and KDI’s licensors retain title to the Service, its source code, Documentation, results of any Consultancy Services and any techniques, skills, concepts or know-how KDI utilizes or develops while performing the Service. No ownership rights are transferred. Customer and its Users will not access source code or attempt to reverse engineer, reverse assemble or decompile the Service to recreate source code. Customer agrees that monetary damages are inadequate to remedy a breach of intellectual property rights, KDI may protect those intellectual property rights through temporary restraining orders or injunctions without posting bond
Applicable Law and Arbitration: The Agreement and any action related thereto will be governed and interpreted by and under the laws of Norway, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in Oslo, Norway.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The laws of the jurisdiction where Customer is located may be different from Norwegian law. Customer shall always comply with all Applicable Laws that apply to its Service.
Any dispute or difference arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, shall be finally settled in accordance with the Norwegian Arbitration Act (the “Rules”). It is agreed that (a) the dispute shall be settled by a sole arbitrator appointed in accordance with the Rules; (b) the place of arbitration shall be Oslo, Norway; (c) the language of arbitration shall be English; and (d) any arbitrator appointed must be fluent in written and spoken English. The arbitration award shall be final and binding upon both Parties.
Payment: Fees are listed in the Order Form.
Payments are due net thirty (30) days. Refunds are not available unless specifically stated in the Order Form. KDI may designate an affiliate or a third party to invoice and/or collect payment on its behalf. Customer may direct KDI in writing to invoice any of its affiliates for sums payable under the applicable Agreement.
Taxes: Customer is responsible for any applicable taxes, except for taxes based on KDI’s income. Unless otherwise stated in the Order Form, Fees do not include taxes. Customer may provide a tax exemption certificate to KDI. KDI will use reasonable efforts to include applicable taxes on KDI’s invoice. Customer will self-assess and pay any VAT, GST or sales tax applicable to Customer’s use of the Service.
Force Majeure: Any delay in the performance of any duties or obligations of either party (except the payment of any amounts owed) will not be considered a breach of the provisions of the Agreement if such delay is caused by, restrictions or changes in Applicable Laws, epidemics or pandemics, labor disputes, acts of God, third-party mechanical or other equipment breakdowns, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunication or digital transmission links, Internet failures or delays, cyber-attacks, storms or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
Confidentiality: Each party acknowledges that it may have access to confidential information of the other party that is either marked as confidential or should be reasonably understood to be considered confidential due to its nature (“Confidential Information”). The recipient will use the discloser’s Confidential Information only to perform its obligations under the Agreement. Recipient will not disclose discloser’s Confidential Information received in connection with the Agreement to any third parties without recipient’s prior written approval. This restriction does not apply to information that is: (a) generally available to the public; (b) released by discloser without restriction; (c) independently developed or acquired by recipient; (d) known to the recipient prior to receipt from discloser; or (e) revealed pursuant to court order or as required by applicable law, provided that recipient uses reasonable efforts to promptly notify discloser of such requirement prior to compliance in order to permit discloser to seek protection against disclosure. Recipient’s obligations of confidentiality for each item of discloser’s Confidential Information will continue for five (5) years from the date of initial disclosure. For the purpose of this section, KDI’s affiliates and subcontractors are not “third parties.” Unless specifically authorized in the Order, neither party will disclose source code or personal data relating to an identified or identifiable natural person.
Privacy: In the event the Customer uploads (or otherwise supplies) KDI with Personal Data pertaining to the User, KDI shall be deemed a data controller. Customer is solely responsible to procure that it has a legal basis for uploading Personal Data, and that the Users have given the necessary consents to process such Personal Data (to the extent necessary), including but not limited to storing and transferring the Personal Data to KDI and its associates for processing.
Personal Data will be processed in accordance with Kongsberg’s Privacy Statement
Customer Materials: “Customer Materials” means any materials Customer uses or directs KDI to use with the Service. Customer grants KDI a nonexclusive, non-assignable, nontransferable and royalty-free license to use the Customer Materials solely to perform the Service. If KDI believes that Customer Materials violate applicable law or third-party rights, KDI may either: (a) require Customer to remove the Customer Materials from the Service; or (b) disable or remove the Customer Materials.
Customer’s Responsibility: Customer will obtain all necessary rights to provide the Customer Materials to KDI. Customer will comply with any third-party usage rights and applicable laws related to the Customer Materials. Customer is solely responsible for backing up all Customer Materials and mitigating the risks inherent in storing or transmitting the Customer Materials via the Service, including the risk of data loss.
Prohibited Activities: Customer and Users will not use the Service to: (a) infringe on any party’s intellectual property or privacy rights; (b) misuse or abuse passwords, confidential information, software, equipment, networks or network devices of KDI or any third party; (c) download the Service, software or data made available by KDI; (d) impair the functionality of the Service; (e) violate any applicable laws or regulations. Customer will promptly notify KDI and use best efforts to remedy any violations of this section by Users. KDI may suspend Customer’s or any User’s access to the Service if Customer violates this section.
KDI relies on the services of a reputable provider of cloud services for the purpose of the Service.
Microsoft Cloud Service: The Service is delivered based on Azure™, provided by Microsoft™ (hereinafter referred to as “Microsoft”). Access to and use of the Service is governed by the terms of Microsoft as applicable from time to time, including its risk distribution. Customer shall comply with the requirements for use of the Microsoft service undertaken by KDI according to Microsoft’s terms, conditions and user requirements.
KDI makes no warranties regarding Microsoft’s products or services. All and any warranties of merchantability and fitness for a particular or intended purpose, are specifically disclaimed by KDI and waived by the Customer to the fullest extent permitted by the applicable law. In particular, Customer acknowledges that it shall hold no further rights against KDI in case of loss of data or unauthorized distribution of or access to data than KDI would hold against Microsoft. Microsoft’s terms are available at http://www.microsoft.com.
Marketing and publicity: KDI reserves the right to publish a notice about this Agreement, as well as use Customer’s name and logo for marketing purposes.