Professional Services Agreement
First version November 2023
These terms for Professional Services ("Service Terms") govern Customer's use of FotoWare's consultancy services when subscribing to either (i) FotoWare's Software-as-a-Service or (ii) on-premises software for Digital Asset Management.
You accept this Service Agreement by accepting a Quote referencing this Service Agreement. If you do not agree to all terms of this Service Agreement, you shall not use FotoWare’s Professional Services.
- "Arrears Act" means the Norwegian Act Relating to Interest on Overdue Payments of 17 December 1976 No. 100.
- “Customer” means the legal entity entering into this Service Agreement.
- "Data Processing Addendum" or “DPA” means the data processing agreement governing FotoWare's processing of Customer's personal data under this Service Agreement, which is either the (i) Data Processing Addendum (DPA) for FotoWare SaaS, or (ii) the Data Processing Addendum (DPA) for FotoWare On-Premises, whatever is applicable.
- "Deliverables" means one or more work products developed for Customer by FotoWare as part of the Professional Services, such as but not limited to configurations or integrations.
- "Documentation” means system set up and user manuals for managing our Deliverables.
- "Fees" mean your payment for the Professional Services as stipulated on any invoice submitted to you.
- “FotoWare” means the company FotoWare AS, org. nr. 978 715 753, Norway.
- "Quote" means an ordering document or email specifying the Professional Services, Deliverables, and associated Fees to be provided under this Service Agreement.
- "Professional Services" means consultancy services such as, but not limited to (a) onboarding, (b) consultancy, (c) configurations of the system, (d) set up digital consent management, (e) integrations, (f) training and adoption, (g) optimizations, (h) user guidance, (i) migrations, (j) workshops, (k) single sign-on, and (l) project management.
2. SCOPE AND CONTENT OF THE PROFESSIONAL SERVICES
- Scope, content, and duration of the Professional Services. FotoWare shall provide the Professional Services and associated Deliverables as described in the Quote. The work shall start and be carried out according to the project plan specified in the Quote and/or as agreed upon between the parties without undue delay after conclusion of the Service Agreement.
- Representatives of the parties. Each party shall appoint a representative authorized to act on behalf of such party in matters relating to the Service Agreement. The parties' representatives shall be listed in the Quote and/or communicated in writing between the parties without undue delay after conclusion of the Service Agreement.
- Key personnel. FotoWare shall specify its key personnel providing the Professional Services in the Quote or in writing before performing the Professional Services. Customer shall be notified in advance of any replacement of FotoWare’s key personnel.
- Affiliates. Customer may order Professional Services on behalf of its Affiliates. If it does, the rights granted to Customer under this Service Agreement will apply to such Affiliates, but only Customer will have the right to enforce this Service Agreement against FotoWare. Customer will remain responsible for all obligations under this Service Agreement and for its Affiliates' compliance with this Service Agreement.
3. CHANGES AFTER CONCLUSION OF THE SERVICE AGREEMENT
- Change requests by Customer shall be agreed upon in writing. Customer’s request for changes or additions to the Professional Services shall be agreed upon in writing between the parties. FotoWare is entitled to reasonable adjustments in payment and/or the project plan due to the agreed changes. Adjusted payment shall be based on time & material according to FotoWare’s applicable standard rates unless otherwise agreed. FotoWare shall maintain a catalogue of change requests in writing on an ongoing basis. FotoWare shall provide Customer with an updated copy of the catalogue without undue delay upon request.
- Notification of observed changes in scope (“scope creep”). FotoWare shall notify Customer in writing without undue delay if it observes that the content or scope of the Professional Services has been changed after conclusion of the Service Agreement. FotoWare reserves the right to charge Customer on an hourly basis for changed content or scope in so far FotoWare has given notification pursuant to this Section, and it is Customer and not FotoWare that has asked for the change creating the scope creep.
4. THE PARTIES' OBLIGATIONS
- Obligations by FotoWare. FotoWare shall a) deliver the Professional Services in a professional and efficient manner according to market practice and this Service Agreement, b) cooperate with Customer loyally and in good faith and enable Customer to verify that the work performed by FotoWare is in accordance with this Service Agreement, c) comply with Customer's reasonable written onsite policies and procedures shared with FotoWare in advance when providing Professional Services at Customer's facilities, d) reply to requests from Customer without undue delay, and e) notify Customer without undue delay about circumstances that FotoWare understands or ought to understand may be of relevance to the delivery of the Professional Services, including any expected delays.
- Obligations by Customer. Customer shall a) contribute to the delivery of Professional Services loyally, timely and in good faith, b) reply to requests from FotoWare without undue delay, and c) notify FotoWare without undue delay about circumstances that Customer understands or ought to understand may be of relevance to the delivery of Professional Services, including expected delays.
5. FEES AND PAYMENTS
- Payment terms. 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. Invoicing shall take place in arrears at a pace agreed upon between the parties, unless otherwise specified by FotoWare. The invoiced amount shall cover the incurred costs until the invoicing date, including any incurred disbursements and expenses. Disbursements and other expenses shall be specified separately.
- Disbursements and subsistence expenses. Customer shall reimburse FotoWare for reasonable, necessary, and documented disbursements and subsistence expenses inflicted when delivering the Professional Services.
- 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 purchasing the Professional Services, 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. FotoWare may choose to suspend providing the Professional Services upon 7 calendar days prior written notice until payment has been made.
- Price changes. FotoWare may change the Fees in January each year by updating a price list of applicable prices for services and products. FotoWare reserves the right to change the Fees published on the price list based on documented increase of purchasing costs and/or Statistics Norway's consumer price index (CPI) until issued invoice for one or more specific services and/or products.
6. SUSPENSION, CANCELLATION AND TERMINATION
- Temporary suspension of a scheduled meeting. Customer may request temporary suspension of a scheduled meeting by giving FotoWare at least 48 hours prior written notice. Customer shall cover FotoWare’s documented hourly standard rates for conducting the scheduled meeting in case Customer does not request suspension in a timely manner.
- Temporary suspension of the Professional Services. Customer may request temporary suspension of the Professional Services by giving FotoWare at least 5 calendar days prior written notice. The request shall specify when the Professional Services shall be suspended, and when it is planned to be resumed. In case of temporary suspension, Customer shall reimburse FotoWare a) documented costs incurred by FotoWare in relation to the reassignment of personnel, and b) other direct costs incurred by FotoWare because of the suspension.
- Cancellation. Customer may cancel the Professional Services by giving FotoWare 30 calendar days prior written notice. Customer shall pay FotoWare the following in case of cancellation before completion of the Professional Services: a) any payment owed to FotoWare for work that has already been performed, b) documented costs incurred by FotoWare in relation to the reassignment of personnel, and c) other costs incurred by FotoWare because of the cancellation.
- Termination for cause. Each party may terminate this Service 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 Service Agreement for cause if Customer fails to pay Fees under this Service Agreement that have been overdue for a period of at least 100 calendar days.
- Suspension. FotoWare may suspend the provision of Professional Services without terminating this Service Agreement during any period of material breach or when reasonably considered necessary for security reasons. FotoWare will give Customer notice before suspending the Professional Services when reasonable.
7. INTELLECTUAL PROPERTY
- Intellectual property rights. Each party and their licensors retain all intellectual property rights including but not limited to trademarks, software, user interfaces, API's, and designs. Customer grants FotoWare a license to use Customer's intellectual property to provide the Professional Services.
- Rights to the Deliverables. FotoWare and its licensors retain all rights to intellectual property incorporated into the Deliverables. Customer is granted a limited, non-exclusive, perpetual, and non-transferable license to use the Deliverables for Customer's internal business processes in accordance with the Documentation.
- FotoWare indemnity. FotoWare shall defend Customer at FotoWare's expense against any third-party claim towards Customer alleging that the Deliverables infringe 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 Deliverables by Customer, (2) use of the Deliverables in a manner inconsistent with the Documentation or in violation of this Service Agreement, or (3) use of the Deliverables in combination with any other product, documentation or service not provided or recommended by FotoWare. If Customer is prevented from using the Deliverables 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 Deliverables, or (b) replace or modify the Deliverables to make them non-infringing. If neither (a) nor (b) is reasonably available to FotoWare, then (c) either party may terminate the Service Agreement. FotoWare's liability for such termination will be a pro-rated refund of any Fees paid for such Deliverables, 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 the Deliverables 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 (2) 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.
- Mutual warranty. Each party warrants that it has the right and authority to enter into this Service Agreement.
- Limited warranty by FotoWare. FotoWare will perform the Professional Services in a professional and workmanlike manner according to applicable market practice. FotoWare will only use personnel with the required skills, experience, and qualifications to perform the Professional Services.
- Remedies. For breach of warranty in accordance with Section 9.2, FotoWare will at its own option (i) use commercially reasonable efforts to re-provide the Professional Services, or (ii) refund a Fee paid by Customer proportional to the documented failure of the Professional Services.
- Disclaimer. Except as specifically provided in this Service 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, or error-free or uninterrupted use of the Professional Services.
10. LIMITATION OF LIABILITY
- Maximum liability. Each party’s aggregated liability to the other party under this Service Agreement is limited to the Fees paid by Customer stipulated in the Quote.
- Exclusions. Each party's liability to the other party under this Service 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 Service 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.
- 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 Service 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 Service Agreement.
- Notifications. Notifications must be in writing and will be treated as delivered on the date of received email.
- Restrictions on transfer. Customer may not transfer this Service Agreement to any Affiliate or third party without FotoWare's prior written consent.
- FotoWare Affiliates and subcontractors. FotoWare may perform its obligations under this Service 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 Service Agreement is governed by the Data Processing Addendum for either SaaS or On-Premises, whatever is applicable.
- Government procurement rules. By accepting this Service Agreement, Customer warrants that (1) it complies with all applicable government procurement laws and regulations, (2) that it is authorized to enter into this Service Agreement, and that (3) this Service 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 Service Agreement. This Section will not, however, apply to Customer's payment obligations.
- Governing law. This Service 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 Service Agreement and order of precedence. This Service Agreement is the entire Service Agreement between FotoWare and Customer regarding Customer's ordering of Professional Services 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 a Quote or otherwise presented by Customer are void. These Service Terms take precedence over any conflicting terms in other documents that are a part of this Service Agreement that are not expressly resolved in those documents.
- Changes to this Service Agreement. FotoWare may unilaterally make changes to the Service Agreement provided that such changes do not impair Customer's rights and obligations. Material changes of the Service Agreement require Customer's consent within 30 calendar days from notification. Customer may terminate the Service Agreement in accordance with Section 6.3 (i) if Customer rejects the material changes within the notice period. Consent is alternatively deemed given if Customer remains passive beyond the notice period.