If you place an order, click Agree, sign an Order Form or take any other affirmative action indicating your acceptance of the terms of this Agreement, you are bound by (i) all of the terms and conditions of this Agreement and any other document incorporated herein by reference.
Please note that your use of Atea Products and/or Services is expressly made conditional on your assent to the terms and conditions set forth herein. If you are an individual entering into this Agreement on behalf of the Customer, you warrant and represent that you have the authority to bind the Customer to this Agreement.
Please note that all orders are subject to Atea’s acceptance. Atea may decline or cancel any order for any reason at any time prior to the provisioning or initiation of the use of any such order.
Please note that Atea may, from time to time, modify this Agreement from time to time by publishing the most current version on the. By continuing to use any Atea Product and/or Service governed by this Agreement after the modification comes into effect, you are agreeing to be bound by the modified Agreement.
1. DEFINITIONS AND INTERPRETATIONS
1.1 For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in the Agreement, the following terms shall have the meaning ascribed to them as follows:
a) Applicable law means any applicable legislative act, statute, law, rule, regulation or directive of any governmental authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect;
b) Confidential Information means all information furnished, whether orally, in writing, electronically or in other tangible forms, and identified as confidential or proprietary at the time of disclosure or otherwise disclosed in a manner such that a reasonable person would understand its confidential nature, including but not limited to, information that is related to:
• the business plans or operations
• the research and development or investigations
• fact and results of any incident
• properties, employees, finances, operations
• information about organization and users
• software or/and related documentation, including third-party software or/and related documentation including (i) computer software (object and source codes), programming techniques and programming concepts, web platforms, methods of processing, system designs; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to such software
• services offerings, content, customers, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts, and strategies.
Confidential Information shall not include any information that the receiving Party can demonstrate by its written records:
• was known to it prior to its disclosure hereunder by the Disclosing Party
• becomes known through no wrongful act of the Receiving Party
• has been rightfully received from a third party authorized to make such a disclosure
• is independently developed by the Receiving Party
• has been approved for release with the Disclosing Party’s prior written authorization
• has been disclosed by court order or as otherwise required by law.
c) Customer Data means all materials provided by Customer to Atea through the use of Product and/or Services, including, but not limited to data, order/financial information, text, graphics, and other materials generated in any form or media
d) Disclosing Party means the Party that discloses Confidential Information, directly or indirectly to the Receiving Party under this Agreement
e) Documentation means ALM Service Description or any other document that pertains to the Product and/or Service. Atea may update or modify the Documentation from time to time, by providing notice to the Customer. Under no circumstances, the changes to the Documentation will result in a material reduction in the level of performance or availability of the Product(s) for the duration of the Term hereof. Notwithstanding the foregoing, Atea disclaims all liability for the change made by Vendor in their respective Vendor Terms and related documentation; Customer is permitted to use the Documentation solely in connection with the use of Product(s)
f) End-User means a person authorized by Customer to use the Product(s)
g) Intellectual Property means intellectual property rights (including, but not limited to, patents, patent applications, trade secrets, trademarks, trade names, service marks, logos, moral rights, or any other copyrights inherent thereunder, along with any registrations and applications to register, as applicable) intangible and intangible materials or information which may be continually under development, modification or improvement, including, but not limited to, software, source code, object code, routines, tools, documentation, methodologies, techniques, algorithms, inventions, ideas, databases, and know-how.
h) Order means the document for ordering Products and which contains information about fees, product specification, order description, and subscription term
i) Party means Atea or Customer as the context requires, Parties shall be construed accordingly
j) Product means a product and/or service identified in the Order and provided or licensed by Atea under the terms of this Agreement. The product includes but is not limited to ALM and Services
k) ALM or Atea License Manager means the software asset management solution provided by Atea to Customer according to the Atea License Manager Service Description (Annex I)
l) Receiving Party means the Party that receives Confidential Information, directly or indirectly from the Disclosing Party under this Agreement
m) Subscription Date means the date in which the Customer has purchased a Product by executing an Order
n) Services means those services outlined in the Order or otherwise agreed between Parties, including, but not limited to, support services, consultancy, and other professional services
o) Subscription Term means the subscription period for the Product(s) specified in the Order; Subscription Term for usage-based Products will continue for the duration of Customer’s use of Product according to this Agreement and respective Vendor Terms (if applicable)
p) Vendor Product means product or service identified in the Order and provided by Vendor according to the Vendor Terms. Vendor Products may include but are not limited to: (i) Snow License Manager; (ii) software licenses; (iii) managed services; (iv) support; or (v) other IT services; Products are available solely within the territory defined in the relevant Vendor Terms
q) Vendor Terms means the product-specific vendor agreement entered into by Vendor and Customer upon executing the relevant Order. Vendor Terms govern the access and use of the Vendor Product(s)
r) Vendor means the (i) third party supplier of Vendor Products.
2. SCOPE OF THE AGREEMENT
2.1 Right to Use. Upon execution of an Order, Atea grants to the Customer a limited, non-exclusive, non-transferable, and revocable license, for a Subscription Term, to use the Products and/or Vendor Products in accordance with this Agreement and the relevant Vendor Terms (if applicable). Products are used solely for Customer’s internal business purposes and not for sale. All Products will be provided according to the applicable Documentation.
2.2 Commencement Date. Product licenses are granted on a subscription basis and are generally available upon Subscription Date. Notwithstanding the foregoing, some Products may be available upon configuration as outlined in the applicable Documentation.
2.3 Vendor Products. Vendor Products are provided in accordance with the Vendor Terms. Atea will make Vendor Terms available to the Customer prior to placing an Order. Atea is not a party to the Vendor Terms.
2.4 Services. In consideration of the payment of Fees, Atea will provide Services to the Customer as outlined in the Order and in accordance with the applicable Documentation.
3. RESPONSIBILITIES AND UNDERTAKINGS
3.1 System Compliance. The customer shall be responsible for its computer hardware and software required to access the Product(s). The requirements pertaining to the Customer IT environment are outlined in the ALM Service Description.
3.2 Acceptable Use Policy. In addition to the terms outlined in the applicable Documentation, Customer shall not: (i) use, or misuse the Product(s) in any way which may impair its functionality or impair the ability of any user to use the Product(s); (ii) modify, copy or create any derivative works based on the Product(s); (iii) license, sublicense, sell, resell, lease, transfer, assign, or otherwise make the Product(s) available to any third party other than to parties as permitted herein; (iv) reverse engineer or decompile any portion of the Product; (v) access Product(s) or Documentation in order to build a similar product or competitive services; (vi) use Product(s) to receive, transmit, host or otherwise process any material that is menacing, of a junk-mail or spam-like nature, illegal, obscene, threatening, defamatory, discriminatory, or in violation of any Applicable Law to which the use of the Product is subject.
3.3 Responsibility for the Vendor Product. The customer acknowledges that the Customer is solely responsible for the use of Vendor Products.
3.4 Product support is provided according to the ALM Service Description.
3.5 Order Information. When placing an Order, the Customer must state its address, company registration number (CVR number), telephone number, and email address or otherwise make such information requested by Atea. The Customer must ensure that the information and data required for placing orders and amending the agreement are correct and adequate at all times. Atea is not liable for any defects or irregularities which are attributable to the Customer's provision of inadequate or incorrect information.
4. PRICES AND PAYMENT TERMS
4.1 Fees. All Product and Service fees (“Fees”) are set forth in the Order and are based on the number of Product, Vendor Product licenses, and scope of services purchased by the Customer. Unless otherwise stated, Fees will be calculated as of Subscription Date. Unless otherwise agreed, Atea reserves the right to change prices by providing Customer with a 60 (sixty) days’ written notice before new prices are in effect.
4.2 Invoicing. Unless stated otherwise in the Order, Atea may bill the customer: (i) annually/monthly in advance; (ii) monthly in arrears (invoice will include all recurring and usage-based fees). The overage fee shall be invoiced on a quarterly basis according to the separate Order.
4.3 Electronic Invoice. All invoices shall be issued by Atea and sent to the Customer’s billing email address indicated in the contact details or associated with the Customer’s account. In case of change of billing details, the Customer shall provide new billing details to Atea in a timely manner.
4.4 Payment Terms. Unless stated otherwise in the Order, All Fees are due within 14 (fourteen) calendar days from the invoice day.
4.5 Currency. Unless stated otherwise, all fees are stated and paid in the currency set out in the Order. Atea reserves the right to adjust prices due to currency, without further notice to the customer.
4.6 Taxes. All fees are exclusive of VAT.
4.7 Late Interest. Atea reserves the right to charge interest to the Customer on any amount of fees that are not paid on the due date. Interest may be charged from the date such payments fail due at the highest rate allowed under the Applicable Law until paid. Interest shall accrue on a daily basis from the due date until actual payment of the overdue amount together with interest.
4.8 Transfer of Funds. All payments under this Agreement shall be paid via wire transfer and shall not be reduced by any wire transfer fee, bank processing fee, or other fee pertaining to the rendering of payment.
5. WARRANTIES AND DISCLAIMER OF WARRANTIES
5.1 Atea warrants that all Atea Products will comply with the applicable Documentation. The warranties will not apply in case of Customers' use of Product contrary to the Documentation. Warranties do not apply to free or trial products that Atea may make available to Customer from time to time.
5.2 Atea disclaims warranties and assumes no responsibility whatsoever for any Vendor Product. Vendor warranties associated with such products will be provided directly by the Vendor and included in the Vendor Terms (if any) to which the Customer is directly bound.
5.3 Atea disclaims warranties and assumes no responsibility for Customer’ compliance with any applicable law or standard, including but not limited to ISO 19770-x (i.e. all standards from ISO 19770 family), ISO 55000, or any other similar standards.
6. SUSPENSION OF PRODUCTS
6.1 Suspension. Atea is entitled to suspend the access to the Product(s) at its discretion if:
6.1.1 Customer breaches any material provision of the Agreement. For the purposes of this Agreement, the material provision shall include breaches of any provision set forth in Section 4 – Prices and Payment Terms; Section 8 - Intellectual Property Rights; Section 10 - Confidentiality.
6.1.2 Atea reasonably believes that suspension of the Product is required to protect Atea’s or any third-party system;
6.1.3 Atea suspends the Product(s) in accordance with the Applicable Law.
6.2 Conditions for Suspension. Atea shall use its best efforts to give the notice of suspension to the Customer at least 24 (twenty-four) hours before the suspension takes place unless Atea determines in reasonable commercial judgment that a suspension on shorter notice is necessary to protect Atea or any third party from operational, legal, financial or security risk.
7. LIMITATION OF LIABILITY
7.1 In no event shall either Party be liable for any indirect, incidental, or consequential loss or damage suffered by the other Party, arising from or in any way connected with this Agreement.
7.2 Atea’s entire liability for all claims related to the Agreement will not exceed the amount of any actual direct damages incurred by Customer up to the total of the amounts paid for the Product(s) which is subject to the claim. In the case or recurring fees, up to 12-month fees shall apply.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Ownership. Atea, its vendors, and licensors retain all rights, title, and interest in and to the Products and Documentation, including without limitation all software, virtual machines, and other technology used to provide the Products and all logos and trademarks reproduced through the Products, and this Agreement does not grant Customer any intellectual property rights associated with the Products or any of its components. This ownership shall apply to all copies and portions of these items, and all improvements, enhancements, and derivative works to these items.
8.2 Modifications. Nothing in this Agreement prohibits Atea and/or its suppliers to modify, amend and in any way, change the Products whether in content, nature or otherwise by providing reasonable information to the Customer in writing and/or make an amendment to Documentation.
8.3 Customer Reference. The customer hereby agrees that Atea may identify Customer as a recipient of services and use the Customer’s logo for the purposes of advertising.
9. INFORMATION SECURITY
9.1 Information Security Controls. Each Party shall be responsible for establishing and maintaining the information security program that includes appropriate technical and organizational measures to (i) ensure the security and confidentiality of Customer Data; (ii) protect against unauthorized access, alteration, destruction, disclosure, loss, or use of Customer Data that could result in substantial harm to Customer or any of its customers and/or end-users; (iii) protect against any anticipated threats or hazards to the security or integrity of Customer Data. Parties acknowledge that Customer remains ultimately responsible for maintaining information security of its own systems, equipment (including but not limited to servers, workstations, routers, switches), network, data communication lines, as required to operate the Products.
9.2 Trained personnel. Each Party shall ensure that any of its personnel and/or contractors authorized to handle Customer Data or Confidential Information have been appropriately trained and are aware of that Party’s information security policies and procedures. Each Party must conduct appropriate information security awareness training for all its personnel and contractors prior to being appointed to work on Customer Data. Thereafter, each party must introduce information security training routines to maintain the appropriate level of information security awareness.
10.1 Confidentiality Obligations. Neither Party will use any Confidential Information except as expressly permitted by this Agreement or as expressly authorized in writing by the Disclosing Party or as required under the Applicable Law. Confidential Information shall not be reproduced in any form without the prior written consent of the Disclosing Party. Any reproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those of its employees or contractors on a “need to know” basis. In addition, prior to any disclosure of Confidential Information to any employee or contractor, such employee or contractor shall be made aware of the confidential nature of the Confidential Information and shall execute, or shall already be bound by, a non-disclosure agreement containing terms and conditions consistent with the terms and conditions of this Agreement. Without limiting the foregoing, each Party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.
10.2 Return or Deletion of Confidential Information. Upon the termination or expiration of this Agreement for any reason, or upon the Disclosing Party’s earlier request, the receiving Party will deliver to or delete the Disclosing Party all of the disclosing Party’s property or Confidential Information in a tangible form that the receiving Party may have in its possession or control. The Receiving Party may retain one copy of the Confidential Information in its legal files.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence as of the Effective Date and, unless earlier terminated as provided herein, shall continue in effect for the Subscription Term of 12 or 36 months as defined in the Order.
11.2 Termination for Cause. This Agreement may be terminated as follows:
11.2.1 if either Party breaches any provision of this Agreement and fails to remediate such breach within 30 (thirty) days after receiving written notice of the breach, specifying with particularity the condition, act, omission or course of conduct asserted to constitute such breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such 30 (thirty) day period;
11.2.2 if either Party becomes insolvent or makes an assignment for the benefit of creditors, then the other Party may terminate this Agreement effective immediately upon notice;
11.2.3 if either Party is dissolved or liquidated, then the other Party may terminate this Agreement effective immediately upon notice;
11.2.4 If required by the Applicable Law, then the other Party may terminate this Agreement effective immediately upon notice.
11.3 Effect of termination. Upon termination or expiry of this Agreement, the following provisions shall apply:
11.3.1 any Fees incurred but unpaid shall become immediately due and payable to the Atea;
11.3.2 Customer shall forthwith cease to use the Products, except for fully paid perpetual product licenses, and shall promptly return all copies of the Documentation to Atea or else destroy those copies of Documentation upon Atea’s request. Notwithstanding the foregoing, if Parties do not suspend the Products upon the termination, the terms of this Agreement that pertain to such Products shall survive termination for the remainder of their respective Subscription Term. The Customer agrees that any prepaid Products cannot be suspended, and therefore, this Agreement will survive termination for as long as Products are covered by the pre-payment. For the purposes of this agreement, the survival of termination means that Atea will be providing the Products and invoice the Customer pursuant to the Agreement until the subscription term for such products will expire.
11.3.3 all rights and authorizations granted to Customer under this Agreement shall immediately cease;
11.3.4 Atea will assist the Customer in good faith in migrating the Customer Data. Atea's fees for such migration will be calculated on the basis of Atea's hourly rates applicable from time to time and the expenses incurred by Atea's sub-contractors. Notwithstanding the foregoing, the Customer will be responsible for migrating the Customer Data. Unless the data is migrated Atea is entitled to delete the Customer Data upon termination of this Agreement.
12. GENERAL TERMS
12.1 Amendments. This Agreement and its annexes may be amended only when duly executed by the Parties in writing. Notwithstanding the foregoing, Atea reserves the right to amend this Agreement by making such a new version available to the Customer.
12.2 Assignment. The customer cannot transfer or assign this Agreement, in whole or in part, or delegate any of its duties hereunder, to a third party by a change in control, operation of law or otherwise, without the prior written consent of Atea. Atea is entitled to transfer or assign this Agreement to any of its affiliates. In addition, Atea is entitled to assign its rights and obligations in connection with a merger, business transfer, reorganization, or similar changes regardless of the form thereof, e.g. by an asset or share transfer.
12.3 Compliance with Laws. Either Party shall and shall cause each of its affiliates and representatives to, comply with Applicable Law and shall obtain and maintain in effect all licenses, certificates, permits, consents, and other governmental authorizations required to perform their obligations under this Agreement.
12.4 Force Majeure. Neither Party shall be liable in the event that its performance of this Agreement is prevented, by reason of a labor dispute, governmental restrictions or actions, war (declared or undeclared) or other hostilities, or by any other event, condition, or cause which is not foreseeable on the Effective Date and is beyond the reasonable control of the Party In the event of non-performance or delay in performance attributable to any such causes, the period allowed for the performance of the applicable obligation under this Agreement will be extended for a period equal to the period of the delay. However, the Party so delayed shall use its best efforts, without obligation to expend substantial amounts not otherwise required under this Agreement, to remove or overcome the cause of delay. In the event that the performance of a Party is delayed for more than 30 (thirty) days, the other Party shall have the right, which shall be exercisable for so long as the cause of such delay shall continue to exist, to terminate this Agreement without liability for such termination.
12.5 Notices. All notices, requests, claims, demands, and other communications shall be in writing in the English language and shall be signed by a person duly authorized to provide such notice.
12.6 Use of Sub-Contractors. Atea is entitled to use sub-contractors for the delivery of the Products and, for example, disclose Customer Data to such sub-contractors to the effect that the subcontractor in question becomes the sub-contracting data processor. Atea warrants that the sub-contractor is subject to the same contractual obligations as Atea and that, in situations where Atea or a sub-contractor is the data processor, Atea or the sub-contractor will act only in accordance with the instructions of the Customer, which will remain the data controller. At the Customer's request, Atea must disclose the identity of the sub-contractors used in connection with the delivery of the Products. Atea must ensure that the persons being authorized to access the Customer's confidential information are subject to the same duty of confidentiality as Atea under this Agreement. This applies regardless of whether such persons are employed by Atea or act as sub-contractors.
12.7 Governing law. This Agreement shall be governed by and construed in accordance with the of Norway applicable therein without reference to any conflict of laws principles under which different law might otherwise be applicable.
12.8 Dispute Resolution. Disputes that arise as a result of an agreement shall, as far as possible, be resolved amicably between the parties. If disputes are not resolved amicably, either party may bring the dispute before the Oslo District Court. The Oslo District Court shall have the exclusive jurisdiction with respect to all disputes connected to this Agreement.