These Terms and Conditions (“Terms”) form an integral part of the Pilot Agreement entered into between Customer and Promon. The Pilot Agreement, together with the Terms, shall constitute the Agreement.
1. Payment. If an amount of payment is specified in the Pilot Agreement, Customer shall pay the amounts in the specified currency via wire transfer to the account specified on Promon’s invoice within 30 days of the date of the invoice. The invoice(s) will be issued upon the delivery of the Software or Services. All payments are non-refundable and shall not depend on, or be withheld based on, evaluation of performance compared to performance targets. All fees are exclusive of tax, and Customer shall be responsible for all applicable assessments, taxes, withholdings, customs, duties, excises, VAT, sales tax, and levies.
2. Term and Termination. The Agreement shall continue for the Pilot Period and may only be extended by mutual written agreement of the Parties by amending the Agreement in advance of Termination. Either Party may terminate the Agreement prior to the end of the Pilot Period if the other Party breaches any term or condition of this Agreement and such breach is not remedied for a period of fifteen (15) days after the Party in breach has been notified in writing of such breach by the other Party. Promon shall be entitled to terminate the Agreement upon notice if Customer fails to make any payments pursuant to the Agreement. Upon expiration of the Pilot Period or any earlier termination, Customer shall cease all use of Software and Services and return, delete, or destroy (if authorized by Promon) the Software and Services. Sections 3 through 12 shall survive termination of the Agreement.
3. Confidential Information. Confidential Information is non-public information that a Party or its affiliates disclose to the other Party or its affiliates which is designated as being ‘proprietary’ or ‘confidential’ or which by its nature or the circumstances of its disclosure reasonably ought to be treated as confidential. The parties may disclose Confidential Information to each other, which may include information concerning their respective businesses and technology. The Software and Services including the Software’s performance characteristics, specifications, and other information shall always be the Confidential Information of Promon. All Confidential Information shall remain the property of the disclosing party, and the receiving party shall have no interest in or rights in such information except as expressly set forth in these Terms. Each party agrees to maintain all Confidential Information of the other party in confidence and to take all reasonable precautions to prevent any unauthorized disclosure of such information. These restrictions on disclosure will not apply to any information which (a) becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (b) is furnished to others by the disclosing party without restriction on disclosure; (c) is known by the receiving party at the time of receiving such information as evidenced by its records; or (d) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure.
4. Intellectual property ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided, Promon and its suppliers retain all right, title, and interest in and to the Software and Services, documentation, the Software’s technical specifications, and other information and materials provided by Promon to enable the integration of the Software and all intellectual property rights embodied therein, including any customizations, modifications, and derivative works by whomever produced. All copies, improvements, updates, modifications, or enhancements of the Software and Services shall remain the property of Promon (including any changes which incorporate any ideas, feedback, input, or suggestions of Customer). For the avoidance of doubt, Promon retains all rights to use, make, have made, reproduce, sublicense, modify, import, sell, distribute, and otherwise commercialize or exploit the Software and Services. All rights not granted by Promon are reserved.
5. License Grant. Customer acknowledges and agrees that it is obtaining only a limited license to the Software and Services and that irrespective of any use of the words “purchase,” “sale” or like terms, no ownership rights are being conveyed to Customer under this Agreement or otherwise. Subject to the terms of the Agreement, Promon grants Customer a limited, non-exclusive, non-transferable, temporary, non-sublicensable license to use the Software, Services, supporting tools and documentation, related components, and documentation (collectively “Licensed Materials”) internally, within its own organization at the evaluation site listed in the Pilot Agreement during the Pilot Period solely for the purpose of internal testing and evaluation of the Software and Services to provide feedback to Promon. Customer may install and use a maximum of one instance of the Software unless otherwise provided in the Pilot Agreement in a non-production environment (limited to a simulation environment and prototype system), and all use shall be at Customer’s own risk. Any use, storing, processing, copying, duplicating, installation, modification, or distribution of the Licensed Materials beyond that which is specifically authorized in this Agreement is strictly prohibited. For clarity, Customer is strictly prohibited from using the Licensed Materials for any commercial purposes.
6. Restrictions. Customer shall not and shall not permit any third party to (i) copy the Licensed Materials or any portion thereof; (ii) rent, sublicense or transfer any copies of the Licensed Materials, or portions thereof, to a third party or allow a third party to use or view the Licensed Materials; (iii) modify, decompile, disassemble or reverse engineer the Licensed Materials, except to the limited extent permitted by applicable mandatory law that makes this restriction unenforceable; (iv) use the Licensed Materials, or any portion of them, or any documentation to develop or create a competitive service, product, or technology; (vi) export the Licensed Materials; (vii) make the functionality of the Licensed Materials available to the public in any manner; (viii) use the Licensed Materials in a production environment; or (ix) remove any notice of copyright from the Licensed Materials. If Customer believes that it has rights to act outside the terms of this Agreement based on mandatory laws, Customer shall not exercise such rights unless and until it has provided thirty (30) days prior notice to Promon, and Promon, at its full discretion, has not provided an alternative remedy.
7. No Demonstration. Customer shall not demonstrate, sample, show, publish performance benchmarks with, or inform third parties about the Software, interface, operation, characteristics or performance of the Software without Promon’s written consent.
8. Trademarks. A party shall not use the trademarks or copyrighted material of the other party without the other party’s express written consent, such consent not to be unreasonably withheld; provided, however, that Promon may communicate the existence of the agreement to its shareholders and investors that are under NDA without consent.
9. Third party software. The Software may incorporate or be provided to Customer with third-party software. Unless otherwise indicated in writing (including the documentation provided with the Software), any third-party software is licensed solely for use with the Software with which it is delivered and is governed by these license terms and conditions. Promon shall make available all licenses governing third-party software incorporated in the Software upon request.
10. No Warranty. THE LICENSED MATERIALS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. Limitation of Liability. IN NO EVENT SHALL Promon BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF the Agreement, Promon’s ENTIRE LIABILITY TO CUSTOMER UNDER the Agreement SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO Promon UNDER the Agreement.
12. General. Nothing herein shall obligate either party to proceed with any transaction or additional agreement between the parties. This Agreement (and any question about its subsistence, effect, or termination) is to be interpreted in accordance with the laws of Norway, except that body of laws controlling conflict of laws. In the event of a dispute arising out of or relating to this Agreement (including non-contractual disputes or claims), the parties shall first seek settlement of that dispute by negotiation between senior executives of the parties. If they are unable to settle the dispute within thirty (30) days, or such other period as the parties shall agree in writing, the dispute including any question regarding the subject matter of this Agreement, its existence, its validity or termination, and any non-contractual disputes or claims relating thereto shall exclusively be referred to and finally be resolved by arbitration pursuant to the Norwegian Act on Arbitration of 2004, which hereby is incorporated into this Agreement. The place of arbitration shall be Oslo, Norway, and the proceedings shall take place in English. The initiation of arbitration proceedings, the proceedings, and the award(s) shall be treated as Confidential Information. Nothing in this Agreement shall be deemed as preventing either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as is necessary to protect either party’s name, proprietary information, trade secrets, know-how, or any other intellectual property rights. Customer may not assign the Agreement in whole or in part without Promon’s written consent. Customer acknowledges that Promon would not make available the Software or Services except on all the terms included in this Agreement, and accordingly Promon may terminate the Agreement and seek injunctive relief upon any breach. The parties are independent contractors, and no employment, agency, or joint venture is created hereunder. All notices, requests and other communications under the Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or sent by international express courier (if applicable) or delivered by hand to the party to whom such notice is required or permitted to be given. The Agreement may not be amended without the prior written consent of both parties. If any provision of the Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. This Agreement is the final, complete, and exclusive agreement between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written.