On-Premises Subscription Licensing Agreement
Revision March 2023
These licensing terms for on-premises software ("Licensing Terms") govern Customer's subscription to licensing of FotoWare's on-premises software and purchase of support for Digital Asset Management.
You accept this Agreement by executing an Order Form referencing these Licensing Terms. If you do not agree to all terms of this Agreement, you shall not subscribe to or use our on-premises software.
FotoWare may occasionally and in certain territories appoint Partners to carry out its services under this Agreement. The Partners are in such case bound by this Agreement on the same terms as FotoWare, unless otherwise specified.
- "Affiliate" means any legal entity that controls, is controlled by, or is under common control with a party. "Control" means direct or indirect ownership or control of more than 50% of the voting interests or the power to direct the management and policies of an entity.
- "Anniversary Date" means the yearly anniversary of the Start Date and is also referred to as the time of "renewal".
- "Arrears Act" means the Norwegian Act Relating to Interest on Overdue Payments of 17 December 1976 No. 100.
- "Confirmation Document" means the document issued by FotoWare upon executed Order Form confirming Customer's covered Software Products, Software Licenses, and Start Date under this Agreement.
- “Customer” means the legal entity entering into this Agreement.
- "Data Processing Addendum" means the data processing agreement governing FotoWare's processing of Customer's personal data under this Agreement, available on https://www.fotoware.com/company/legal/dpa-for-on-premises.
- "Documentation” means user manuals for how to get started and managing our Software Products, available on https://learn.fotoware.com/On-Premises.
- "End User" means any person Customer permits to use a Software Product.
- "Fees" means your payment for the Software Product(s) and support as stated on any invoice issued to you.
- “FotoWare” means the company FotoWare AS, org. nr. 978 715 753, Norway.
- “Next Business Day” means the next day where normal business operations are conducted. This is Monday through Friday from 9 a.m. to 5 p.m. CET excluding weekends and public holidays unless otherwise specified.
- “Order Form” or "Quote" means an ordering document specifying the Software Products, Software Licenses and associated Fees to be provided under this Agreement.
- “Partner” means a reseller engaged by FotoWare for the sale of Services and support to Customer.
- "Professional Services" means consultancy services such as, but not limited to (a) onboarding, (b) configurations of the system, (c) set up management, (d) integrations, (e) training and adoption, (f) updates and downgrades, (g) optimizations, (h) user guidance, (i) user guidance, (j) migrations, (k) workshops, (l) single sign-on, and (m) project management.
- "Start Date" means the first day of the Subscription Period as stipulated in the Confirmation Document.
- “Software Product” means an on-premises software product and associated API's licensed from FotoWare and covered by this Agreement, as defined in Customer's Confirmation Document. Relevant Software Products are available on https://learn.fotoware.com/On-Premises.
- "Software License" means Customer's licensed right to install and use a Software Product covered by the Confirmation Document.
- "Subscription Period" means the 12-month-long period effective from Start Date that Customer is bound to subscribe to Software Licenses under this Agreement unless otherwise specified.
- "Support Packages" means support offerings including but not limited FotoWare’s different levels of support packages available on https://www.fotoware.com/support-overview.
- "Use Rights" means specific license terms for each Software Product published as part of the Documentation and/or in your Confirmation Document.
2. SOFTWARE LICENSE
- License Grant. This Agreement grants Customer the right to subscribe to Software Licenses covered by the Confirmation Document. The Software Licenses are limited, non-exclusive and non-transferable and may only be used for Customer's internal business processes in accordance with applicable Use Rights and the Documentation.
- Duration of Software Licenses. The Software Licenses are activated on Start Date and expire at the end of the applicable Subscription Period unless renewed.
- End Users. Customer shall control access to and use of the Software Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.
- Affiliates. Customer may order Software Products for use by its Affiliates. If it does, the Software Licenses granted to Customer under this Agreement will apply to such Affiliates, but only Customer will have the right to enforce this Agreement against FotoWare. Customer will remain responsible for all obligations under this Agreement and for its Affiliates' compliance with this Agreement.
- Reservation of rights. FotoWare and its licensors retain all rights to the Software Products and reserve all other rights not expressly granted to Customer under this Agreement.
- Restrictions. Except as expressly permitted in this Agreement, Customer must not and is not licensed to (1) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on any Software Product, or attempt to do so, (2) install or use third party software or technology in a way that would make a Software Product subject to a third party's license terms, (3) work around any technical limitations in a Software Product or restrictions or instructions in the Documentation, (4) separate and run parts of a Software Product on more than one device, (5) upgrade or downgrade parts of a Software Product at different times, (6) transfer parts of a Software Product separately, (7) remove or circumvent any technology incorporated by FotoWare to monitor and prevent Customer's violation of the Software License in accordance with Section 2(7), (8) distribute, sublicense, rent, lease, or lend any Software Product, in whole or in part, or use them to offer hosting services to a third party, or (9) perform other improper or illegal acts with the Software Product.
- Preventions of overuse and license violations. FotoWare reserves the right to incorporate technology in the Software Product to monitor and prevent overuse or violation of your Software License, such as serial numbers, online activation, and online tracking of software use.
3. ALTERATIONS DURING THE SUBSCRIPTION PERIOD
- Right to new releases. Customer is entitled to use new releases of a Software Product from the time of public software release during the Subscription Period. An exception is made for the release of new functionality offered as add-ons to a Software Product that must be purchased separately.
- Upgrades and downgrades. Customer may upgrade a Software License during the Subscription Period with effect from the date of purchase. Customer may downgrade a Software License by giving written notice no later than 90 calendar days before renewal.
- New purchases and removals. Customer may subscribe to new Software Licenses not previously covered by Customer's Confirmation Document during the Subscription Period with effect from the date of purchase. Customer may choose to remove one or more Software Licenses with effect for the subsequent Subscription Period by giving written notice no later than 90 calendar days before renewal.
4. SUPPORT AND PROFESSIONAL SERVICES
- Standard support. Customer is entitled to standard support by using the contact form available on FotoWare Support or by contacting firstname.lastname@example.org in case of technical issues or problems with the Software Product. Support shall make reasonable efforts to respond to all support requests within the Next Business Day.
- Support Packages. FotoWare offers Support Packages that may be ordered as an add-on in case Customer wants support beyond standard support.
- Professional Services. Customer may order Professional Services as an add-on on a time and material basis on separate terms in case Customer needs consultancy services beyond standard support and/or a Support Package.
- Support from Partner. Customer shall direct all support requests to Partner on the conditions outlined in 4.1 to 4.3 above if FotoWare has engaged a Partner to carry out this Agreement towards Customer. Customer may escalate the support request to FotoWare if Partner is unable to respond within the Next Business Day from issued request. Partner may escalate Customer’s support requests to FotoWare at its own discretion and whenever needed.
5. FEES AND PAYMENTS
- Payment terms. Customer shall pay for the Subscription Period on an annual basis in advance. All Fees shall be paid in the currency specified on the invoice. Payment is due 30 calendar days from invoice date unless otherwise specified on the invoice.
- Taxes. The Fees are exclusive of any value added tax (VAT) and other charges unless otherwise specified on the invoice. Each party is responsible for paying any taxes or charges assessed to it by a competent tax authority. Any taxes or charges imposed on Customer through subscribing to the Software Licenses, including withholding taxes, are the responsibility of Customer, so that no deductions or withholdings can be made from Customer’s payments based on present or future taxes.
- Late payments. Late payments are subject to late payment interest in accordance with the Arrears Act.
- Price changes. FotoWare may change the Fees with effect for the subsequent Subscription Period by giving Customer at least 120 calendar days prior written notice before renewal. FotoWare reserves the right to change the Fees based on documented increase of purchasing costs and/or Statistics Norway’s consumer price index (CPI) until issued invoice for renewal.
- Payments to Partner. The Fees shall be paid in accordance with instructions on the invoice from Partner if FotoWare has engaged a Partner to carry out this Agreement towards Customer. The Partner may apply local law for late payment interest in case of late payments.
6. TERM AND TERMINATION
- Term of subscription. The Subscription Period is 12 months long from Start Date unless otherwise specified with automatic renewals of 12 months from each Anniversary Date unless terminated before renewal in accordance with Section 6.2 below. Customer cannot opt out during the Subscription Period and cannot claim reimbursement of its annual payment unless it terminates this Agreement for cause in accordance with 6.3 below.
- Termination for convenience. Each party may terminate this Agreement for convenience with effect for the subsequent Subscription Period by giving 90 calendar days prior written notice to the other party before renewal.
- Termination for cause. Each party may terminate this Agreement for cause (i) if the other party is in material breach and the material breach remains uncured for a period of 30 calendar days from receipt of notice by the other party, or (ii) if the business of the other party becomes subject to rescheduling proceedings, composition with creditors, bankruptcy, or any other form of creditor intervention. FotoWare may terminate the Agreement for cause if Customer fails to pay Fees under this Agreement that have been overdue for a period of at least 100 calendar days. Customer is entitled to a refund proportional to the remaining Subscription Period already paid for in case it lawfully terminates this Agreement for cause in accordance with (i) or (ii) above.
- Suspension. FotoWare may suspend its licensing of Software Products and offering of support without terminating this Agreement during any period of material breach or when reasonably considered necessary for security reasons. FotoWare will give Customer notice before such suspension when reasonable.
- Obligations upon termination. Customer shall permanently delete, destroy, or return all Software Products and associated materials within a grace period of one month from termination of this Agreement at its own cost. All restrictions in accordance with Section 2 and obligations in Section 8, 9 and 10 of this Agreement continue to apply during the grace period, in addition to Section 7 as stipulated in Section 7.3 below.
- Confidentiality obligation. Each party is obliged to keep confidential any information of confidential nature they get access to from the other party when carrying out this Agreement. Each party undertakes to take all necessary precautions to prevent unauthorized persons from gaining access to, or knowledge of, confidential information. The confidentiality obligation applies to each party’s employees, subcontractors and any other third parties acting on behalf of the parties.
- Exceptions. The confidentiality obligation does not apply to:
1) Information in the public domain, provided its publication is unlikely to have been caused by illegal acts or omissions,
2) Information that a party has received prior written consent from the other party to release,
3) Information that has become known to a party via an independent third party who had an indisputable right to convey this information,
4) Information that a party can document was developed independently of the information received from the other party, and
5) Information that a party is obliged to disclose by law, by order of a competent authority or before a Court. Each party shall, if possible, be notified prior to such disclosure.
- Duration of confidentiality obligation. This confidentiality obligation continues to apply after termination of this Agreement.
- FotoWare indemnity. FotoWare shall defend Customer at FotoWare's expense against any third-party claim towards Customer alleging that a Software Product infringes that third party's intellectual property rights and shall indemnify and hold Customer harmless against any losses arising from such third-party claim. FotoWare shall however have no liability for claims or losses to the extent that they arise from (1) modification of the Software Product by Customer, (2) use of the Software Product in a manner inconsistent with the Documentation or in violation of this Agreement, or (3) use of the Software Product in combination with any other product, documentation or service not provided or recommended by FotoWare. If Customer is prevented from using the Software Product or if FotoWare reasonably believes it will be prevented, FotoWare may, at its own option, (a) procure the right for Customer to continue to use the Software Product, or (b) replace or modify the Software Product to make it non-infringing. If neither (a) nor (b) is reasonably available to FotoWare, then (c) either party may terminate the Agreement. FotoWare's liability for such termination will be a refund to Customer proportional to the remaining Subscription Period, in addition to the indemnification obligations in this Section.
- Customer indemnity. Customer shall defend FotoWare at Customer's expense from any third-party claim against FotoWare alleging that (1) Customer's use of Software Product infringes such third party's intellectual property rights, and Customer shall indemnify and hold FotoWare harmless against any losses relating to such claim.
- Conditions. The indemnitor's obligations in Section 8.1 or 8.2 above are conditioned on the indemnitee (1) promptly giving written notice of the third-party claim to the indemnitor, (2) granting the indemnitor the right to control the defense and settlement of the third-party claim, (3) not settling any claim or making any admission of fault or liability in the name of the indemnitor without indemnitor's prior written consent, and (4) providing to the indemnitor, at the indemnitor’s cost, all reasonable assistance.
- Limited warranties. FotoWare warrants that a Software Product's current version will perform substantially as described in the Documentation until a new version is released. FotoWare does not warrant, however, that your use of the Software Product will be uninterrupted or that the operation of the Software Product will be error-free or secure.
- Remedies. FotoWare will at its own option (1) advise how to make the Software Product perform substantially as described in the Documentation, (2) repair the Software Product by releasing a new version (both major, minor and emergency software releases), (3) replace the Software Product if Customer notifies FotoWare within the period of valid warranty, or (4) refund the Fee paid by Customer for the Software License.
- Exclusions. The limited warranties in Section 9.1 do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement or in breach of minimum system requirements required by the Documentation. The warranties do not apply to preview, prerelease- and beta versions of products and features, earlier versions, or features not covered by the Documentation.
- Disclaimer. Except as specifically provided in this Agreement, FotoWare disclaims all warranties or similar liability, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
10. LIMITATION OF LIABILITY
- Maximum liability. Each party’s aggregated liability to the other party under this Agreement is limited to the sum of Customer’s annual payment during the specific Subscription Period in which the loss occurred.
- Exclusions. Each party's liability to the other party under this Agreement is limited to direct loss and does not include incidental or indirect loss such as loss of revenue, loss of profit, loss of data, loss of business, depletion of goodwill or similar.
- Exceptions. Each party’s liability to the other party under this Agreement is uncapped and unlimited if (1) inflicted with gross negligence or with intent, (2) if inflicted in breach of the other party's intellectual property rights, or (3) if subject to indemnification.
- Notifications. Notifications must be in writing and will be treated as delivered on the date of received email.
- Contact person. Customer is obliged to designate a contact person on the Order Form that shall be the point of contact for all notifications directed to and from the Customer.
- Restrictions on transfer. Customer may not transfer this Agreement to any Affiliate or third party without FotoWare's prior written consent.
- FotoWare Affiliates and subcontractors. FotoWare may perform its obligations under this Agreement through its Affiliates and use subcontractors to provide certain services. FotoWare remains responsible for their performance.
- Personal data. FotoWare's processing of Customer's personal data in relation to its services under this Agreement is governed by the Data Processing Addendum available on https://www.fotoware.com/company/legal/dpa-for-on-premises.
- Government procurement rules. By accepting this Agreement, Customer warrants that (1) it complies with all applicable government procurement laws and regulations, (2) that it is authorized to enter into this Agreement, and that (3) this Agreement satisfies all applicable procurement requirements.
- Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party's reasonable control (such as, but not limited to power blackout, acts or omissions of Internet traffic carriers or regulatory or governmental bodies) and that makes it extremely difficult or impossible to fulfill the duties under this Agreement. This Section will not, however, apply to Customer's payment obligations under this Agreement.
- Governing law. This Agreement shall be governed by and interpreted in accordance with Norwegian law, excluding its choice of law principles.
- Dispute resolution. In case of a dispute between the parties that cannot be solved by negotiations, each party shall be entitled to have such dispute finally decided by Oslo District Court as legal venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights.
- Entire Agreement and order of precedence. This Agreement is the entire Agreement between FotoWare and Customer regarding Customer's subscription to licensing of FotoWare’s Software Products and supersedes all prior and contemporaneous agreements, written or oral, concerning its subject matter. The parties agree that any additional or conflicting terms contained in an Order Form or otherwise presented by the Customer are void. These Licensing Terms take precedence over any conflicting terms in other documents that are a part of this Agreement that are not expressly resolved in those documents.
- Changes to this Agreement. FotoWare may unilaterally make changes to the Agreement provided that such changes do not impair Customer's rights and obligations. Material changes of the Agreement require Customer's consent within 30 calendar days from notification. Customer may terminate the Agreement in accordance with Section 6.3 (i) if Customer rejects the material changes within the notice period. Consent is alternatively deemed given if the customer remains passive beyond the notice period.