Terminology

The following terminology applies to these Terms and Conditions:

 

"Provider" and “Proactima” refers to the Proactima entity which is specified in the Order and Price Form including subsidiaries and / or mother company.

 

“User” – User is the person actually using the Proactima Software as a Service. One Client may have one or multiple users.

 

“Trial period” – A limited period of time in which, the services are provided for free to a new client. During the trial period, a User is considered both User and Client.

 

Proactima “Software as a Service” – is a branded offering provided by Proactima and made available via a network. Software as a Service is designed to be available 24/7 subject to required maintenance.

 

“Subscription Agreement” is to be understood as a binding combination of these “General Terms and Conditions”, “Proactima Data Processing Agreement” and a signed Proactima “Order and Price Form”.

 

Proactima uses different brand names for various offerings. These terms and conditions are valid for any solution delivered by Proactima and made available using a network as access point.

 

A “Service” may consist of a software application, several software applications and related IT services in combinations.

 

The Software as a Service may include integrations with web services made available by third parties that are accessed through Proactima’s Software as a Service and subject to terms and conditions with these third parties.

 

Any use of the above terminology or other words in singular, plural, capitalisation and/or he/she or they, are to be regarded as interchangeable and therefore as referring to same.

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General

Client agrees that:

• Client has the right to use Proactima’s provided Services, only under the terms and conditions written in this document, including stated links to named websites.

• All ownership rights to the Proactima Services belongs to Provider.

• Client may, and will not copy (unless expressly authorised by Provider in writing) or attempt to decompile, reverse engineer, disassemble, derive the source code, modify or create derived works of any aspects of the Proactima Services and software. Client accepts that any attempt to do so would be a violation of the rights of Provider and constitute a breach of this agreement.

• Client is obliged to use the Proactima Services in compliance with all applicable laws, including local laws of the country or region in which the client is registered, lives and/or uses the software and/or downloads updates to the Services and software.

• Some of Proactima’s  Software as a Service utilises *.zip files containing data structures that may be customized by the Client, Proactima or third parties. Customized files, exclusive of Client’s data, is the property of Proactima and the Client  is solely granted a user right as long as the Subscription Agreement is valid.

 

Proactima’s Services and software are protected by intellectual property rights.

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Fees and Payment

Proactima’s Services may be used free of charge during the trial period of 30 calendar days starting from the date of its first access and / or installation by the User. To continue using the Software as a Service after expiration of the trial period, the Client has to sign Proactima’s “Order and Price Form” for the actual Service.

 

All payments to Proactima shall be made to Proactima's bank account as stated on the invoice unless otherwise agreed in writing. All prices quoted by Proactima are exclusive of VAT, any other local sales taxes and/or withholding taxes. Payment shall be made within 30 days after receipt of the invoice. For late payment interest will be charged at a rate of 1% per month or part thereof.

 

Services in form of work are invoiced monthly in the following month. All other fees, licenses and similar are invoiced monthly, quarterly or yearly as per the individual Order and Price Form.

 

Proactima adjusts all offered hourly rates 1st of January each year in accordance with the increase of the Norwegian Tekna Index since last adjustment.

 

Proactima adjusts all other offered price elements 1st of January each year reflecting the general cost increase in delivering Proactima Services. In case of extraordinary cost increases, all price elements may be changed upon 60 days notice reflecting the extraordinary cost increase in delivering Proactima Services.

 

 

Data ownership

All data entered or uploaded to Proactima’s Software as a Service are owned by the Client, regardless of which User has entered or uploaded it.

 

Proactima provides the ability to its Clients to export and/or permanently delete all the data they have ever entered or uploaded to the Software as a Service by contacting Proactima’s support services. This can be done on client's

request during the validity of the trial or subscription period and 3 months upon its expiration, after which the data will be automatically deleted and become unrecoverable.

 

Proactima reserves the right to charge for any given assistance to transfer or delete Client’s data on Client’s request.

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Privacy, Data Confidentiality and Protection

Proactima is committed to protecting our Clients’ privacy. Provider’s staff is required to comply with rigorous privacy and security policies in order to ensure client’s data will be safe.

 

Proactima constantly reviews our systems and internal processes to ensure the best possible service to our clients.

 

Provider’s Software as a Service does not collect confidential account or authentication data. The Services rely on authentication mechanisms our Clients and Users already use and / or as described in signed Order and Price Form.

 

If User enters privacy related data while using Proactima’s Services, either as part of an assessment, attached document or in any other way, Proactima will use the same protection measures to protect this as with any other data entered by Users.

 

Data entered or uploaded into Proactima’s Services can only be accessed by the Client. If the Client has authorised multiple Users to use the Services, all Users are allowed to access Client’s data.

 

All data entered or uploaded by User in this manner, belongs to the Client and is considered confidential. To the extent it is necessary to deliver Proactima’s services, Proactima’s staff is granted access to Client’s data. Proactima has implemented rigorous organizational and technical controls to ensure that Proactima’s subcontractors do not have access to Client`s data, without authorised Client’s approval.

 

Client data will not be divulged to any third party, unless Proactima is legally required to do so by appropriate authorities or legal rulings.

 

An acceptance of these Terms and Conditions implies that the Client, as Data Controller grants the Data Processor (Provider) power of attorney to enter into Data Processing Agreements, including, but not limited to, Standard Contractual Clauses pursuent to EU Commission decision 2010/87/EU, on behalf of Data Controller. Data Processor shall ensure that such agreements reflect these Terms and Conditions and that any sub Processors are obliged to comply likewise. Upon request, the Data Controller shall receive a copy of signed Data Processing Agreements entered into on his behalf.

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Proactima’s Software as a Service Availability

To provide best service availability to our Users, some of our Services run on a Microsoft Azure platform and Proactima is not responsible in case of incidents or any kind of service unavailability caused by malfunction of Microsoft Azure. Microsoft Azure SLA, can be found at http://azure.microsoft.com/en-us/support/legal/sla/

 

Support response time during working hours is maximum 2 hours. Response time does not guarantee a resolution to any issue within a specific time frame. However, responses to questions and non-urgent problems are typically given by a product specialist or trainer within regular work hours 8:00-16:00 CET Monday to Friday.

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Exclusions and Limitations

To the fullest extent permitted by law, Provider excludes all liability for damages arising out of or in connection with Client’s use of Proactima’s Software as a Service. This includes, without limitation, direct loss, indirect loss as, but not limited to, loss of business or profits, damage caused to Client’s infrastructure, software, systems or programs and the data thereon, or any other direct or indirect, consequential or incidental damage.

 

In no event shall Provider or our suppliers be liable for any damage (including, without limitation, damages for loss of data and profit due to business interruption), arising out of the use or inability to use the Service, even if Provider or a Provider authorized representative has been notified orally or in writing of the possibility of such damage.

 

In any event, Provider’s liability is limited to the amount paid for the Services in the 12 months immediately preceding the event giving rise to the liability.

 

Termination of Subscription Agreement and Refunds Policy

Both the Client and Provider have the right to terminate Subscription Agreement for any reason, including the ending of services that are already in use. Notice of termination from either party shal be given 60 – sixty – days in advance of the effective termination. Applicable refunds shall be offered in accordance with the terms and conditions set by the Subscription Agreement.

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Logo and Trademarks

Proactima’s name, logo and Service brands are trademarks of Provider. All other trademarks or registered trademarks are property of their respective owners.

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Force Majeure

Neither party shall be liable to the other for any failure to perform any obligation under any agreement which is due to an event beyond the control of such party including but not limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen. Any Party affected by such event shall forthwith inform the other Party of the same and shall use all reasonable endeavours to comply with the terms and conditions of any Agreement contained herein.

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Waiver

Failure of either Party to insist upon strict performance of any provision of this or any Agreement or the failure of either Party to exercise any right or remedy to which it, he or they are entitled hereunder shall not constitute a waiver thereof and shall not cause a diminution of the obligations under this or any Agreement. No waiver of any of the provisions of this or any Agreement shall be effective unless it is expressly stated to be such and signed by both Parties.

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Notification of Changes

Provider reserves the right to change these Terms and Conditions from time to time as it reasonable sees fit and Client’s continued use of the Proactima Software as a Service signifies client’s acceptance of any adjustment to these terms.

 

Likewise, Provider reserves the right to change functionality and content of the Services from time to time as it sees fit and Client’s continued use of the Proactima Software as a Service signifies client’s acceptance of any such change.

 

Any change to these Terms and Conditions or significant changes in functionality and content of the Services will be announced on our home page and on other key pages on our site. Client is therefore advised to re-read these statements on a regular basis.

 

If Proactima has an intention to substantially change these Terms and Conditions or functionality and content, Proactima will announce this with a 60 – sixty – days’ notice periode before the change is effective.

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Consultancy and Work Variations

The Client shall be entitled to request additional work (hereinafter referred to as "variations") under this Agreement. All variation requests shall be in writing, clearly defining the variation required, including but not limited to remuneration and time schedule. No variation shall be implemented before the parties have reached an agreement regarding the extent and the remuneration hereto and the revised time schedule.

 

Unless otherwise agreed, Proactima withholds all rights to functionality, code, interfaces, forms or similar produced under this clause or under the Proactima Agreement for the provision of Consultancy Services related to Proactima Software and Services.

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Work Execution

Proactima shall execute the Work in a highly professional manner and in accordance with the provisions of the corresponding Order and Price Form.

 

Any documented error or defect in the Work will be rectified by Proactima within a reasonable period of time at Proactima’s sole cost, provided said error or defect is not attributable to the Client or Client's subcontractor and Proactima is duly notified of said errors or defects within six months after completion of the Work.

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Health, Safety and Environment

The Client shall inform Proactima of any real or potential HSE hazard which may be relevant to or involved or introduced in the Work and/or any necessary safety measures required for the Work, prior to or during the performance of the Work.

 

Whenever Proactima undertakes work on site, the Client shall provide all adequate safety measures to ensure a working environment that is safe and in accordance with all relevant legislation.

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Governing Law

These Terms and Conditions shall be construed, interpreted, and governed by the laws of Norway, and Stavanger District Court will be the legal venue.