General terms and conditions
General terms and conditions
These General Terms and Conditions ("Terms and Conditions") apply when Norsys Technology AB, org nr. 556401-3745, Box 226, Saltsjöbaden SE-133 02 ("Norsys") sells or distributes the Products (as defined below) in which case the Customer agrees to be legally bound to abide to and accepts these Terms and Conditions.
Norsys reserves the right to amend these Terms and Conditions from time to time. Any such amednments shall be immediately effective between the Parties. An up to date version can be found at www.norsys.se.
In these Terms and Conditions, the following terms are defined as follows:
"Agreement" means the Terms and Conditions, its appendices and any and all other documentation between the Customer and Norsys or the Supplier regarding the delivery of the License to the Products (as defined below) as well as the Service and the Support.
"Customer" means the legal entity that purchase a License to the Products or related Service from Norsys;
"License" means the license for the Customer to use the Products specified in the order confirmation;
"License Period" means the time during which the Customer's license is valid.
"Maintenance" means correction of errors, general improvements and new functions (updates and upgrades) of the Products that the Supplier from time to time upon its sole discretion decides to include into the Products;
"Products" means Minitabs products; Minitab Statistical Software, Companion by Minitab, Minitab Workspace, Quality Trainer, Minitab Express, SPM - Salford Predictive Modeler, Training by Minitab.
"Start Date" means the start date of the License Period;
"Service" - means the service Norsys provides to the Customer in relation to the Products;
"Supplier" - means Minitab, LLC, Quality Plaza, 1829 Pine Hall Road, State College, Pennsylvania United States of America;
"Support" means first-level technical support via local telephone access and within local language. Pre- and after sales support continues through the ordering process to delivery of the Product(s). Support includes promoting and providing installation and navigation technical support for all Product(s) by phone, online, and/or e-mail, to all Customers;
"User" means the person that the Customer has authorized to use the Products and the Service and Support.
- Quotation, Order and Order Confirmation
· Norsys, on behalf of the Supplier, sells and distributes the Licenses to the Products. Norsys provides the Customer with a quotation which is valid for a period of thirty (30) days from the date of the quotation, if no other time is specified in the quotation. The Customer purchases the License of the Products through Norsys by accepting quotation by placing an order in writing. The Terms and Conditions applies to the quotation and the order.
· A quotation is an offer by Norsys and is conditional upon Norsys approving the Customer's credit and therefore shall not be capable of forming a contract binding upon Norsys until such time as the credit worthiness of the Customer has been approved by Norsys.
· Once Norsys accepts the Order Norsys will issue an order confirmation in writing to the Customer. The Terms and Conditions applies to the order confirmation.
· An order confirmation is conditional upon the following conditions whereas an order confirmation is not binding upon Norsys until:
- the Customer has approved the Supplier's license agreement and therefore shall not be capable of forming a contract binding upon Norsys until the Customer has approved the Supplier's license agreement which the Customer needs to accept at the latest when downloading the Products from the Supplier's webpage https://www.minitab.com/en-us/license-agreements/minitab/ ; and
- the Supplier's has accepted the Order of the License to the Products and a binding agreement cannot come into place until the Supplier has accepted the Order.
· No order which has been accepted or acknowledged by Norsys or the Supplier may be cancelled by the Customer except with the agreement in writing of Norsys. Notwithstanding Norsys agreement to the cancellation, the Customer shall fully indemnify Norsys in the event of cancellation, in full against any or all losses (including consequential loss and loss of profit), costs (including the cost of all labour and materials used and including the cost of cancellation of any third party orders placed by Norsys in order to fulfil the contract), damages, charges and expenses incurred by Norsys as a result of such cancellation.
· In entering into the Agreement the Customer acknowledges that it does not rely on, and hereby waives any claim against the Norsys for breach in relation to any representations made by Norsys which are not confirmed subsequently in writing.
· Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, order confirmation, invoice or other document or information issued or provided by Norsys shall be subject to correction without any liability on the part of Norsys.
· The Customer may only request a change to an order in writing, and for the avoidance of doubt Norsys is under no obligation to accept such change request. In the event that changes to an order are agreed to by Norsys and the Supplier, such changes will be subject to charges for all costs occasioned by such change(s), and Norsys will be under no obligation to implement said changes unless and until the Customer agrees to pay such additional costs in writing.
- Norsys's obligations
· Norsys shall from the Start Date agreed between the Parties deliver instructions per e-mail to the Customer for installation and activation of the Products.
· Norsys shall provide Service to the Customer during the License Period.
· Norsys shall provide Support of the Products to the Customer during the License Period.
· Norsys is not obliged to deliver any product or service to the Customer outside the scope of the Agreement.
· The Customer hereby undertakes to:
- pay all applicable fees to Norsys when due and as stated in the Agreement;
- provide all required information to Norsys and the Supplier during implementation of the Products to enable Norsys to meet the terms and conditions of the Agreement;
- to be responsible for its own hardware and software and it is the Customers responsibility to ensure that the Customer holds and maintains the hardware and software necessary to utilize the Products. The Customer is further responsible and shall be liable for the connection between the Customer's hardware and software and the Products. Norsys nor the Supplier guarantee function or provide support for hardware or for any software outside the Products;
- keep information for login data, security methods and other information that Norsys provides for access to the Products as Confidential Information. The Customer shall immediately notify Norsys in the event that any unauthorized user has gained knowledge about information in accordance with this Agreement or the Supplier's license agreement; and
- make sure and is responsible and liable for that all Users use the Products in accordance with and subject to the terms and conditions specified in the Supplier's license agreement.
· The Customer shall hold Norsys harmless for any damage caused by the Customer's breach of its undertakings under this Agreement and the Supplier's license agreement.
· The Customer is solely responsible for installation and activating the Products and the Customer shall report any problems with installation of the Products, activating of the Products or any other problems with the Products to Norsys without any delay. The Customer shall, when notifying Norsys about a problem, state and when necessary demonstrate how the problem appears. In case the Customer does not report a problem according to what is stated above, Norsys take no responsibility for any problems the Customer might have with the Products.
Terms of payment
· Norsys will invoice the Customer according to terms of the Agreement and in accordance with this Section.
· All fees are exclusive of all taxes, including sales, use or value added taxes where applicable.
· The fees stated in the order confirmation are fixed during the term stated on the order confirmation. However Norsys reserves the right to, without prior notification, apply price adjustments of the fees stated in the quotation caused by major currency fluctuations during which the exchange rate between GPP and SEK increases or decreases more than 5% in comparison with the average exchange rate at the month of issuing the quotation according to information available at www.riksbanken.se. [JP1]
· Norsys and the Supplier reserves the right to change the fees for the License at any time during the term of the Agreement. The new fees shall be effective upon renewal of the term.
· The Customer agrees to pay all fees as specified in the Agreement within thirty (30) days, if not otherwise specified in the order confirmation, from the date of Norsys's invoice.
· If the Customer fails to make any payment when due, then Norsys has the right to obtain interest in accordance with the Swedish Interest Act, if not otherwise stated in the Agreement, on overdue payment, and in such an event withhold the whole delivery, or parts of the same.
· If the Customer has not paid within agreed payment term as stated above, Norsys reserves the right to cancel the Order and the Agreement. If Norsys terminates the Agreement as a result of this Section, the Customer has no right whatsoever to any compensation from Norsys.
Term and termination
· The term of this Agreement begins upon the Customer placing an Order to Norsys, however the term for the use of the Products is conditioned on Start Date for the License to the Products.
· Either Party shall have the right without prejudice to any rights exercisable, damages accrued or claims for damage or other relief, to terminate this Agreement forthwith for cause by written notice to the other Party in any of the following events occurring to the other Party:
- if either of the Parties breached any of the material terms or conditions of this Agreement or fail to fulfill any material covenant and the defaulting Party shall fail to fully cure such breach within thirty (30) days of receipt of written notice from the Party asserting the breach; or
- if a Party becomes insolvent, is adjudged bankrupt, applies for judicial or extra judicial settlement with its creditors, makes an assignment for the benefit of its creditors, voluntarily files for bankruptcy or has a receiver or trustee (or the like) in subject of liquidation or dissolution or involuntary bankruptcy proceedings or otherwise discontinues business.
· In the event of termination of this Agreement, Norsys shall not be liable to the Customer for any renumeration, compensation, reimbursements, reparations or damages of any kind.
· Norsys shall not be liable or responsible for any warranty of the Products which is greater than the Supplier's product warranty.
· Norsys is not liable for any payment to the Customer, such as any type of renumeration, compensation, profits, reimbursements or damages whatsoever which are incurred or suffered by the Customer in case a) the Customer fails to comply with the Supplier's applicable return policy which are available at https://www.minitab.com/en-us/legal/returns/minitab-online-store-return-policies/#ReturnPolicy b) the Supplier rejects an Order c) an Order is cancelled by the Customer due or not to the Supplier's and/or Norsys's default d) the Products in an Order are provided in full or partial satisfaction of any warranty or other contract breach, tort or other product liability claim.
· In no event shall Norsys be liable for any indirect, consequential, incidental, special or punitive damages or losses including without limitation to damages or losses for loss of profits, loss of production, expected savings, business interruption, loss or corruption of data or information or other pecuniary loss.
· Norsys total liability towards the Customer shall in the event where damages have not been caused by intent or gross negligence be limited to direct losses up to but not exceeding 10% of the total the contract sum of the Agreement during the year the damage or the major part thereof has occurred.
· Norsys accepts no liability in relation to price adjustments nor amendments of the Terms and Conditions caused by the fact that Norsys during the terms of the Agreement ceases to sell/deliver the Products.[JP2]
· Both Parties agree to, without limitation in time, to during the term of this Agreement to keep secret and not to disclose to any third party during the term of this Agreement any and all Confidential Information received from the other Party and not to use it for other purposes than proper fulfilment of this Agreement.
· Confidential Information shall mean any and all information and data disclosed by the Parties to each other regardless if it has been disclosed or documented in writing, orally transmitted or in any other way:
- information which at the time of disclosure, is in the public domain;
- information which after disclosure, becomes part of the public domain by publications or otherwise, except by breach of this Agreement;
- information which the disclosing Party can establish by competent proof was in its possession at the time of disclosure by the other Party, and was not acquired, directly or indirectly as a result of breach of confidentiality.
· During the term of the Agreement the Parties will process personal data related to the employees, contact persons and similar of the other Party in order to fulfill its obligations under this Agreement or if the commercial interests outweigh those of the data subject and the processing is necessary for the purpose in question.
· Both Parties undertake to process all personal data according to the Regulation (EU) 2016/679 of the European parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, other applicable laws and regulations.
· Norsys and the Supplier have entered into a Data Processing Addendum for the proper processing of personal data shared between Norsys and Supplier such as customer names, related information, sale leads and similar.
· Neither of the Parties shall be liable on any account for any failure to fulfil any terms of this Agreement, if such fulfilment has been frustrated by Force Majeure including but not limited to natural disaster, war, epidemic, riots, civil commotion, sabotage, terrorism, vandalism (including computer virus attack or hacker attack), strike, lockout (including if the government regulations (national or international), or any enforceable supervening event of whatsoever nature beyond the control or either of the Parties hereto which could not be foreseen.
· If any fault, delay or non-performance of any contractual obligations resulting from a Force Majeure event cannot be remedied within three (3) months either Party may terminate this Agreement and/or Order with immediate effect.
Law and venue
Swedish law applies to this Agreement.
· Any dispute arising from this Agreement shall be settled by the final and binding arbitration in accordance with the SCC Rules for Expedited Arbitrations. In case the SCC Rules for Expedited Arbitrations cannot be applied due to the complexity of the dispute, the value of the case or other circumstances the SCC Rules apply, whereas the applicable rules shall govern if the dispute is to be settled by one (1) or three (3) arbitrators appointed.
· Such arbitration shall be held in Stockholm and the applicable language shall be Swedish.
· The English version of this Agreement and all documents and instruments delivered in connection herewith, shall be deemed to be the authoritative version(s) and will be controlling for all purposes. Any translations of any documents are for convenience only.
· Customer may not assign this Agreement without Norsys written consent.
· The waiver by Norsys of any default by the Customer will not waive subsequent defaults by the Customer of the same or a different kind, or constitute any pattern, practice, or course of conduct which is binding upon Norsys.
· In the event any of the provisions of this Agreement are held to be unenforceable by a court of competent jurisdiction, the other provisions will remain in full force and effect, and any court or tribunal having jurisdiction may replace such unenforceable provisions with a like kind to carry out and fulfill the intent of the Agreement.
· This Agreement is binding upon the Parties and their permitted successors and assigns.
· All provisions of this Agreement which by their nature are reasonably intended to continue following termination, including sections 7, 8, 9, 11,12 and 13 and shall survive termination.
· The use of headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the construction, meaning or interpretation of this Agreement.
· Any notices hereunder or other communication required shall be given in writing and shall be delivered to the addresses stated in the Agreement (or to other address which a Party notifies the other party with five (5) days notice). Notices or written communications shall be deemed to have been received i) if delivered personally, by courier or e-mail (where the sender has receipt proof of receipt) on delivery and ii) three (3) days from sending by certified mail.
· This Agreement supersedes all prior agreements, proposals and communications between the Parties, and comprises the entire understanding of the Parties with respect to the subject matter hereof.