THIS AGREEMENT (the Agreement) is entered into among and between
(1) Lingofy AS, Østensjøveien 36, NO-0667 Oslo, Norway (organisation no. 888283382) (Lingofy) and
(2) You as a customer (Customer),
separately referred to as a party, and jointly as the parties.
1. BACKGROUND AND PURPOSE
Lingofy develops, licenses, maintains and supports a commercial software-as-a-service for proofreading and spell checking purposes.
The Customer wishes to use the service for its internal business purposes, and Lingofy is willing to grant the Customer a license for such use, subject to the terms of this Agreement.
The purpose of the Agreement is to regulate the parties’ rights and obligations in relation to granting Customer a license to access and use the services.
The Customer enters into and accepts the Agreement by clicking accept terms for use.
In this Agreement:
Affiliate means any company or legal entity which controls, or is controlled by a party, or is controlled by an entity which controls a party, in accordance with the definition in the Norwegian Limited Liability Act § 1-3.
Change of Control means the (i) consolidation or merger of or transfer of control over the Customer, with or into any entity (other than the consolidation of the Customer with an affiliate of the Customer in which the Customer is the surviving entity), (ii) acquisition by any entity, or group of entities acting in concert, of ownership of outstanding voting securities or other ownership interests of the Customer as would result in the entity becoming an affiliate of such other entity or entities, or (iii) any sale, transfer or other disposition of all or substantially all of the assets of the Customer.
Confidential Information means all information and documentation of a party whether disclosed to or accessed by the Customer in connection with the Agreement: (i) any and all information marked or identified as confidential (ii) with respect to Lingofy, all the data and all information of Lingofys and their employees, customers, suppliers and other third parties conducting business with Lingofy (iii) products, methods, processes, software programs, designs, specifications, algorithms, trade secrets, services, (iv) any information developed by reference to or use of Lingofy’ information, whether (without limitation) in written, picture, machine readable or oral form, or obtained by observation during visits.
Customer Data means the data provided by the Customer for the Customer’s use of the Services, including without limitation written material to be spell checked or proofread by the Services.
Documentation means all documentation to the Services and / or the Software.
Intellectual Property means all work of authorship, procedures, designs, inventions, discoveries, and, in each case, in all forms, formats, languages and versions.
Intellectual Property Rights means all rights, title to and interest in any Intellectual Property, including without limitation, copyrights, patents, designs, trade marks, trade secrets and database rights and all registrations and applications relating to the foregoing.
Services means the services for spellchecking or proof reading purposes which are delivered to the Customer through the Internet, “Lingofy”
Software means all software comprised and contained in the Services, and all software downloaded by the Services to Customer’s computer in connection with Customer’s use of the Services.
3. THE SERVICES
Lingofy shall provide Customer with access to the Services, as further set out in the Agreement.
The Customer’s acknowledges and accepts that use of and access to the Services requires downloading and installation of software and plugins at the Customer’s computer, and that such downloading and installation will be done automatically when the Customer accesses the Services
Lingofy shall take reasonable commercial efforts to ensure that the Services and the Software operate substantially in accordance with the Documentation.
Lingofy may update the Services with new releases, versions, error corrections and patches, at regular intervals to be determined at Lingofy’ discretion. Lingofy may further update the dictionaries comprised in the Services at regular intervals, also to be determined at Lingofy’ discretion.
4. CUSTOMER’S COOPERATION AND RESPONSIBILITIES
Customer shall ensure that no unauthorised users are given access to the Services, and shall implement measures to keep usernames and passwords to the Services confidential.
Customer shall pay the charges for the Services according to the rates and terms set out in on the webpage for the Services.
Customer is responsible for its own Internet connection, and for the Internet browsers and the software, including valid licenses to such browsers and software, required for access to and use of the Services, as may vary from time to time, and which is set out in the Documentation and / or specifications for the Services.
Customer acknowledges that no software is error free. Customer shall therefore be solely responsible for taking all precautions which are necessary to ensure that the Services do not cause negative effects. Customer further acknowledges that the Services may be unavailable from time to time, due to, among other, maintenance and update, and that such unavailability shall result in no liability whatsoever for Lingofy.
5. PAYMENT AND COMMERCIAL TERMS
Customer shall pay to Lingofy all fees, charges and expenses for the Services, as set out on the webpage for the Services. If the Customer pays by invoice, the invoice is due within thirty (30) days of the invoice date.
All prices, fees and charges are exclusive of VAT. Customer shall be responsible for all local taxes.
Lingofy may, at any time, adjust prices, fees and charges. The new prices will be posted on the webpage for the Services.
Late payment shall entitle Lingofy to late payment interest in accordance with the Norwegian Act Relating to Late Payment Interest of 1976.
Lingofy hereby grants to Customer a limited, non-exclusive, revocable, non-transferrable, non-sub-licensable right to use the Services, including the Software comprised in the Services, solely for Customer’s internal business purposes.
Customer may not modify, further develop, disassemble, decompile or reverse engineer the Services, the Software or any elements of the Services.
In the event Customer is a company or corporation, Customer’s Affiliates may not use the Services or the Software without Lingofy’ express, prior, written consent.
Customer may not use the Services or the Software for (i) the purpose of any transaction undertaken for a fee or performed substantially for the benefit of a third party, (ii) sending spam, infringing or otherwise unlawful material, (iii) sending viruses, worms, Trojan horses or other malware, (iv) interfere with or disrupt the performance of the Services, (v) processing unlawful or infringing Customer Data or (vi) attempting to gain unauthorized access to the Services.
Lingofy, and / or its licensors, shall have full title and ownership to the Services, the Software and the Documentation, and to any modifications, customizations and further development of the Software, Services or Documentation, also when such modifications, customizations and further development is performed under the Agreement or as part of Customer’s cooperation with Lingofy. All exclusive Intellectual Property Rights, trade secrets, trademarks, patents, copyrights and database rights shall remain with Lingofy, and are not transferred to Customer as part of the Agreement.
8. CUSTOMER DATA
Customer shall have all rights, title to and interest in the Customer Data.
Customer shall be responsible and liable for the content, correctness and lawfulness of the Customer Data.
Customer shall not use the Services to process Customer Data exceeding the maximum document size, the maximum number of documents per day, the maximum processing time per day or the maximum number of processed bytes per day, specified in the Documentation for the Services. Nor shall Customer use the Services to process material or Customer Data that infringes a third party right, or is otherwise unlawful.
Lingofy may use and download all Customer Data, including Customer Data personalized by the Customer, for internal business purposes such as improving, further developing and maintaining the Services and other products.
9. REGULATORY COMPLIANCE / PERSONAL DATA
If the Agreement involves processing of Personal Data, Lingofy shall ensure that the processing is compliant with the Norwegian Personal Data Act of 2000 with regulations.
Lingofy warrants that the Services and the Software functions substantially in accordance with the description set out in the documentation for the Services.
Lingofy further warrants that the Services will be performed in a professional manner by qualified personnel, and in accordance with the Agreement.
In the event of a defect in the Services, Lingofy may, at its sole remedy, replace or repair the defective part of the Services.
Lingofy shall have no obligation to correct errors, defects and malfunctions caused by Customer’s misuse or abuse of the Services, Customer’s use of the Services in conflict with Lingofy’ instructions, the specifications or the Documentations, or errors caused by use of software or hardware that are non-compliant with the Services.
If Customer’s use constitutes a breach of the Agreement, including without limitation a default in payment, failing to have a valid license to the Services, uses the Services or the Software to process infringing or unlawful material, Lingofy may immediately suspend the Services for as long as the breach giving rise to the suspension continues.
11.3 TERMINATION FOR BREACH
Lingofy may, by written notice, immediately terminate the Agreement if the Customer:
fails to remedy a material breach within thirty (30) days after receipt of a notice specifying the breach;
commits material breach of the Agreement that is not capable of remedy; or
is declared bankrupt, becomes insolvent, makes any arrangement or compositions with or assignment for the benefit of its creditors, or goes into voluntary or compulsory liquidation or has a receiver or administrator appointed over its assets.
11.4 LIMITATION OF LIABILITY
Either party’s liability shall be limited to the license fees paid or due for the Services. If no license fees are paid or due, Lingus shall have no liability whatsoever under the Agreement.
Neither party shall be liable for the other party’s indirect or consequential damages, including without limitation, loss of contract, loss of data, loss of Customer Data or loss of profit.
However, Customer acknowledges that breach of the confidentiality obligation or licence conditions set out in clause 6 may cause irreparable damage to Lingus, and shall therefore not be subject to the limitation of liability set out in this clause.
12. TERM AND TERMINATION
The Agreement is effective from the date Customer accepts and enters into the Agreement by clicking accept terms for use.
Lingofy agrees to indemnify Customer, limited up to the license fee paid or due during the last 12 calendar months, with respect to a suit, claim or proceeding brought against Customer due to a third party Intellectual Property Rights infringement in the Services and / or the Software, only if a court of competent jurisdiction bindingly has decided that the Services and / or the Software actually infringes such third party rights.
If such suit, claim or proceeding in a party’s reasonable opinion is likely to arise, Lingofy may, at Lingofy’ option, either 1) procure for Customer the right to continued use of the Services, or 2) substitute the infringing part of the Services with non-infringing parts.
The indemnities under set out above are contingent upon: (1) the Customer promptly notifying Lingofy in writing of any claim which may give rise to a claim for indemnification hereunder; (2) Lingofy being allowed to control the defence and settlement of such suit, claim or proceeding; and (3) the Customer co-operating with all reasonable requests of the Lingofy in defending or settling a suit, claim or proceeding.
14. FORCE MAJEURE
Neither party shall be liable to the other for any failure to fulfil obligations caused by circumstances beyond its reasonable control which qualifies as force majeure under Norwegian law (Force Majeure event). If a Force Majeure Event occurs the affected party shall without undue delay inform the other party thereof and also of how long the Force Majeure Event is expected to continue.
If a Force Majeure Event continues for sixty (60) days or more, either party may terminate the Agreement by a written notice to the other party. The termination shall be effective two (2) weeks after the date of the termination notice. Both parties shall make their best efforts to mitigate the effects of a Force Majeure Event.
Both parties shall observe complete confidentiality with respect to any Confidential Information about the other party.
Notwithstanding the foregoing, the parties may disclose Confidential Information to their employees, consultants, subcontractors and advisors to the extent disclosure is necessary for fulfilment of the Agreement, provided such employees, consultants, subcontractors and advisors enter into a confidentiality agreement with at least the same level of protection as the Agreement.
Confidential Information may not be used for any other purposes than the Agreement.
The confidentiality obligation shall not apply to information that:
is already known by a party prior to entering into the Agreement;
is or becomes publicly known, and this is not caused by breach of the Agreement; or
is rightfully received from a third party.
A party may disclose Confidential Information when such disclosure is required by law or a court decision made by a court of competent jurisdiction.
Breach of the confidentiality obligation is regarded as material breach of the Agreement. The confidentiality clause shall survive termination of the Agreement.
Customer may not assign its rights or obligations under the Agreement without the Lingofy’ prior written consent.
Lingofy may freely assign its rights and obligations under the Agreement.
15.3 CHANGE OF CONTROL OR OWNERSHIP IN CUSTOMER
In case of Change of Control in Customer, Lingofy shall immediately be notified, and shall thereafter have the right to terminate the Agreement with one (1) months notice to Customer.
Lingofy may, from time to time, amend or modify this Agreement. The updated Agreement will be posted on the Services’ webpage, and the Customer will be asked to enter into and accept the updated Agreement the next time the Customer accesses the Services.
15.5 INDEPENDENT PARTIES
Nothing in the Agreement shall be interpreted to form a partnership or joint venture between the parties, or authorize either party to act on or enter into agreement on the other party’s behalf.
15.6 GOVERNING LAW AND DISPUTE RESOLUTION
The Agreement is regulated by the laws of Norway.
In case of a dispute arising out of or in relation to the Agreement, the parties shall make their best efforts to settle the dispute amicably by negotiations. If the dispute has not been settled within four (4) weeks of such negotiations have been requested, the dispute shall be settled by arbitration in Oslo, in accordance with the Norwegian Arbitration Act of 2004.