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Terms and Conditions

Last modified: December 8, 2023

The Terms and Conditions also includes the Acceptable Use Policy, Privacy Policy and General Definitions.

1 Parties

1.1 DigiLEAN AS, a company incorporated in Norway (registration number NO916 706 766) having its registered office at Luramyrveien 40, 4313 Sandnes (the “Provider”); and

1.2 Registered DigiLEAN users or companies represented by one or multiple users, hereby referred to as (the “Customer“).

2 Objectives of the contract

DigiLEAN is a web-based improvement platform consisting of several modules. The platform provides software as service to customers.

3 Duration and termination

3.1 Term

This Agreement shall come into force upon the Effective Date. This Agreement shall continue in force until termination in accordance with Clause ‎3.2.

3.2 Termination

Either party may terminate this Agreement by giving to the other party a written notice. The Provider must provide a notice at least ninety (90) days before the next Subscription Term. The Customer must provide a notice at least thirty (30) days before the next Subscription Term. In case the Customer cancels the subscription during the subscription term, the Customer will not be refunded or credited for any unused period within the Subscription Term. The Customer may still use the Services until the end of the Subscription Term.

Either party may terminate this Agreement by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

Either party may terminate this Agreement by giving written notice of termination to the other party if: 

  1.  The other party:
    1. Is dissolved
    2. Ceases to conduct all (or substantially all) of its business,
    3. is or becomes unable to pay its debts as they fall due,
    4. is or becomes insolvent or is declared insolvent, or
    5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors.
  2. An administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party.
  3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement). 

3.3 Effects of termination

Upon the termination of this Agreement, all the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely). The termination of this Agreement shall not affect the accrued rights of either party. Within 30 days following the termination of this Agreement for any reason: <0l>
  1. The Customer must pay to the Provider any charges in respect of Services provided to the Customer before the termination of this Agreement; and
  2. The Provider must refund to the Customer any charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties’ other legal rights.

4 Financial provisions, invoicing and payment

4.1 Prices

  1. Unless indicated otherwise, Subscription Fees are stated in United States Dollar (USD)
  2. All prices are quoted exclusive of all taxes (including, but not limited to value added tax, use tax, goods and service tax, etc.) The Customer is responsible for all applicable taxes related to this Agreement.
  3. Any assistance beyond the agreed customer commitment must be explicitly approved by the customer, and the provider must obtain the customer’s written consent before the customer is liable to pay any charges.

4.2 Invoicing and payment

  1. The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
  2. Customer shall, within 30 Days after receipt of an invoice, pay the amount due to Provider according to the invoice.
  3. If the Customer fails to make payment by the agreed time, the Provider shall be entitled to suspend Customer’s account and services. Suspension shall not relieve Customer’s obligation to pay amounts due.
  4. Invoice shall preferably be sent electronically by e-mail in PDF format.
  5. Invoice shall be paid using wire transfer.

5 Charges

5.1 The Provider may change the price for the Paid Subscriptions, and will communicate any price changes to The Customer in advance. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change.

6 Hosted Services

6.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date.

6.2 The Provider hereby grants to the Customer a non-exclusive license to use the Hosted Services for the internal business purposes of the Customer during the Term.

6.3 The license granted by the Provider to the Customer under Clause ‎6.2 is subject to the following limitations:

  1. the Hosted Services must not be used at any point in time by more than the number of users agreed upon, providing that the Customer may add or remove user licenses in accordance with the administration module in Services provided.

6.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause ‎6.2 is subject to the following prohibitions:

    1. the Customer must not sub-license its right to access and use the Hosted Services;
    2. the Customer must not permit any unauthorized person to access or use the Hosted Services;
    3. the Customer must not republish or redistribute any content or material from the Hosted Services; and
    4. the Customer must not make any alteration to the Platform.

6.5 The Customer shall use reasonable endeavors, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an administrator Account.

6.6 The Provider shall guarantee 99% availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services. Availability exclude planned downtime where Customer is notified at least a week ahead.

6.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:

  1. a Force Majeure Event;
  2. a fault or failure of the internet or any public telecommunications network;
  3. a fault or failure of the Customer’s computer systems or networks;
  4. any breach by the Customer of this Agreement; or
  5. scheduled maintenance carried out in accordance with this Agreement.

6.8 The Customer must comply with Appendix B (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with Appendix B (Acceptable Use Policy).

6.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

6.10 The Customer must not use the Hosted Services:

  1. In any way that is unlawful, illegal, fraudulent or harmful; or
  2. In connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

6.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

6.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

7 Service support and performance

7.1 The Provider shall provide the Support Services to the Customer during the Term.

7.2 Customer Users may use the customer feedback functionality in DigiLEAN to report any feedback such as bugs, questions, and improvement suggestions. From the menu the user may click on “Feedback to DigiLEAN” and write down any feedback. The user can easily follow the status of the support ticked from the Start page.

7.3 The Provider shall make available to the Customer a helpdesk that can be contacted during Business Hours.

7.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

7.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
The following are the response time targets for providing the initial response:

  • Critical: Within 24 business hours
  • Other: Within 48 business hours

7.6 Provider shall guarantee a minimum availability of the Hosted Services to the Customer as described in Clause ‎6.6.

8 Maintenance services

8.1 The Provider shall provide the Maintenance Services to the Customer during the Term.

9 Customer data

9.1 The Customer hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement.

9.2 The Customer warrants to the Provider that the Customer Data will not:

    1. breach the provisions of any law, statute or regulation;
    2. infringe the Intellectual Property Rights or other legal rights of any person; or
    3. give rise to any cause of action against the Provider, in each case in any jurisdiction and under any applicable law.

9.3 The Provider shall create a backup copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the backup was taken, and shall retain and securely store each such copy for a minimum period of 14 days.

9.4 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavors to restore to the Platform the Customer Data stored in any backup copy created and stored by the Provider in accordance with Clause ‎9.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

9.5 Upon termination of contract or liquidation of Provider’s company, customer data shall, upon request, be extracted and transferred to the Customer in the best possible tabular and useful form. If the built-in extraction functions available in Hosted Services is not sufficient, the Customer shall bear the cost associated with the extraction and transfer of data performed by the Provider.

10 Provider's confientiality obligations

10.1 The Provider must:

    1. keep the Customer Confidential Information strictly confidential;
    2. not disclose the Customer Confidential Information to any person without the Customer’s prior written consent;
    3. use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
    4. act in good faith at all times in relation to the Customer Confidential Information; and
    5. not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.

10.2 Notwithstanding Clause ‎10.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.

10.3 This Clause ‎10 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

    1. is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
    2. is or becomes publicly known through no act or default of the Provider; or
    3. is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

10.4 The restrictions in this Clause ‎10 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.

10.5 The provisions of this Clause ‎10 shall continue in force indefinitely following the termination of this Agreement.

11 Data protection

11.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws.

11.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:

    1. it will act only on instructions from the Customer in relation to the processing of that Personal Data;
    2. it has in place appropriate security measures (both technical and organizational) against unlawful or unauthorized processing of that Personal Data and against loss or corruption of that Personal Data; and
    3. it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Customer.

12 Product ownership and Intellectual Property (IP)

12.1 Provider has the ownership of DigiLEAN and its IP, including the innovations and development of this product.

12.2 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

13 Warranties

13.1 The Provider warrants to the Customer that:

    1. the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
    2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and
    3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

13.2 The Provider warrants to the Customer that:

    1. the Platform and Hosted Services will conform in all respects with the Hosted Services Specification;
    2. the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
    3. the Platform will incorporate security features reflecting the requirements of good industry practice.

13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under Norwegian law.

13.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

13.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:

    1. modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
    2. procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

13.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

13.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

14 Acknowledgements and warranty limitations

14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

14.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

14.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

 

15 Limitations and exclusions of liability

15.1 Nothing in this Agreement will:

    1. limit or exclude any liability for death or personal injury resulting from negligence;
    2. limit or exclude any liability for fraud or fraudulent misrepresentation;
    3. limit any liabilities in any way that is not permitted under applicable law; or
    4. exclude any liabilities that may not be excluded under applicable law.

15.2 The limitations and exclusions of liability set out in this Clause ‎15 and elsewhere in this Agreement:

    1. are subject to Clause ‎1; and
    2. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

15.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

15.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

15.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.

15.6 Neither party shall be liable to the other party in respect of any loss of use or production.

15.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

15.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software, providing that this Clause ‎15.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause ‎7.4

15.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

16 Force Majeure Event

16.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

16.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

    1. promptly notify the other; and
    2. inform the other of the period for which it is estimated that such failure or delay will continue.

16.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

17 Subcontracting

17.1 The Provider must not subcontract any of its obligations under this Agreement without the prior written consent of the Customer, providing that the Customer must not unreasonably withhold or delay the giving of such consent.

17.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

17.3 Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

18 Modifications

Occasionally the Provider may revise these Terms for valid reasons, such as adding features to the service, typos, legal or regulatory reasons or for any other reasons deem necessary. If the modifications to these Terms are material, the Customer will be notified prior to the change take effect, either by emailing the email address associated with the Customer account or by notification on the service Website (www.digilean.com). Unless otherwise stated elsewhere in these Terms or in Provider’s notice, the updated Terms will take effect upon their posting. The Customer’s continued use of the Service after any update to these Terms constitutes acceptance of such changes.

19 Contractual notices, claims and notifications

All notices, claims and other notification to be given in accordance with the provision of the contract shall be submitted to the buyer or the customers designated representative.

Notices to DigiLEAN must be sent to contact@digilean.com with a copy to Provider’s address.

Provider’s address:
DigiLEAN AS
Luramyrveien 40,
4313 Sandnes
Norway

20 Law and disputes

This contract shall be governed by and interpreted in accordance with Norwegian law.
Disputes arising in connection with or as a result of the Contract, and which are not resolved by mutual agreement, shall be settled by court proceedings unless the parties agree otherwise.

21 General

21.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

21.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

21.3 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

21.4 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

21.5 Subject to Clause ‎15.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

22 Interpretation

22.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:

    1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
    2. any subordinate legislation made under that statute or statutory provision.

22.2 The Clause headings do not affect the interpretation of this Agreement.

22.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.