Business Analyze Software as a Service
Master Subscription Agreement (“Agreement”)
Last updated February 19, 2016
1. Scope of the Agreement
The Agreement gives the Customer access and right to use the Business Analyze Software (access to Software subsequently referred to as “Service”) during the Agreement term with such functionality as the Service has at any time.
The Service are installed on servers at Business Analyze’s hosting partner ’s facilities and the Customer gets access to the Service via the Internet, by logging in using an assigned username and password. Business Analyze retains all rights to all elements that the Service consists of. The Customer is not awarded any license or any usage right beyond what is expressly stated in this Agreement. As an integral part of this Agreement, the Customer shall have the right to receive support as defined in clause 6 of this Agreement.
This agreement was last updated February 19, 2016. It is effective between the Customer and Business Analyze AS, as of the date you accept this Agreement.
1.1 Free Trial
If you register on our website for a Free Trial of our services, we will enable one or more of our services for you, free of charge until the earliest of a) the free trial ends or b) the date for any services you purchase. This Agreement will also govern the Free Trial.
PLEASE NOTE: Any data you enter into the Services, or configurations you do, during the free trial, will be permanently lost if you terminate this agreement during your free trial period. If you decide to purchase the same services you have in the Free Trial before your Free Trial ends, you can continue the use of your data and configurations after the Free Trial.
Business Analyze reserves the right to accept or deny any individual or company registration of the Service without explanation or cause. You may not access the Service if you are a competitor, except with prior written consent form Business Analyze AS. You may not access the Service for purposes of monitoring the Service´s availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Agreement date” is the date you submit the Initial Order form. You are from this date our customer and we will enable our Service to you without unnecessary delay.
“Initial Annual agreement” means that you sign up for an initial 12-month period. Your agreement will be automatically renewed for a running Agreement period in accordance with the agreed Invoice interval.
“Agreement period” is the current Agreement period you are in. This means initially the Agreement period is 12 months, before it changes to match the Invoice interval you are in.
“Invoice interval” is the same as “Payment period”, and is specified in the Initial Order form or when agreed changed, in writing at later dates.
“Subscription fee” is the total amount you are charged for using the service according to your Invoice interval.
“Current invoicing period” is used when invoicing additional User Plans and additional services.
“Data-subjects” are the Customer´s (Controller´s) own users as further described in clause 9.
“Initial Order form” is used to describe the documents (which include information about number of User Plans, Invoice interval, prices, etc.) when initially ordering the Service.
“User Plan” is the name of the plan assigned to an individual user for a specific feature-set.
“Company Plan” is the name of services with a specific feature-set available on a “per-customer” basis.
“Metered Services” is the term used for measuring storage volume.
“Pay-per-use” is used when actual use of “Metered Services” are exceeding the limits included in the Service.
2. Term of the agreement
The Agreement is a continuing agreement that runs until terminated by any of the parties according to the provisions in clause 13. Use of, or submitting an order for the Services, constitutes a legally binding agreement between the Customer and Business Analyze.
3. Limited usage
The right to access the Service is limited to such number of Users as specified in the Initial Order Form. If the Customer needs to expand the Agreement to cover additional Users, then the usage rights for additional Users shall be ordered from Business Analyze according to the procedure in clause 12.
The Users should only be the Customer’s employees or consultants who according to a further agreement are performing services for the Customer. The Users shall commit themselves to follow these conditions. The Customer shall commit itself not to let others gain access to the Service or the documentation, either directly or indirectly, by other means than what expressly follows from the Agreement.
A User’s password may not be shared with any other individual, and User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content.
The Customer can solely use the Service for the Customer’s internal purposes. The Customer is not entitled to perform data processing on behalf of a third party using the Service. The Customer commits itself to use the Service according to the applicable law and regulations, permissions and requirements in the Agreement.
The Customer is responsible for the data, materials and the information that the Customer or its Users process with the Service. The Customer shall not use the service to send illicit spam or otherwise unlawful material using the Service.
The Customer shall not store or send material containing software viruses and similar harmful computer codes, scripts, files, or programs. The Customer shall not attempt to gain unauthorized access to the Service or its related networks or systems.
The Customer is at all times responsible to not interfere with or disrupt the integrity or performance of the Service or the data it contains.
In case of breach of these conditions, Business Analyze is entitled to immediately terminate the Agreement and shut down the Customer’s access to the Service with immediate effect. Such actions from Business Analyze shall not release the Customer from the obligation to pay for the total current Agreement period.
4. Service availability
The Service is delivered on an “as is” basis.
Some type of Service maintenance will result in disruptions in operation of the Service. To the extent, it is possible; the Customer shall be informed of such maintenance with a sufficient notice. Such maintenance shall preferably be attempted performed outside normal office hours and in such way that the Service is disrupted as little as possible. The maintenance may however be performed with a short notice or without notice and may be carried out during office hours, if this is necessary to correct errors in the Service or to prevent errors in the Service from occurring.
The Service availability is dependent upon the use of the Internet, which may be subject to limitations, delays and other problems outside Business Analyze’s control.
Reduced availability of the Service do not entitle the Customer to claim for reduction of the subscription fee, unless the reduced availability is due to gross negligence on the part of Business Analyze.
When the Customer experiences reduced availability the Customer shall notify Business Analyze if the Service is unavailable by submitting a new support request to Business Analyze’s Support Center, available from inside the service or from Business Analyze’s web-site within 3 working days following an incident.
The Customer must provide all relevant information of the incident, including, but not limited to, a detailed description, the number of affected users and the location of these users and any attempts made by the Customer to resolve the incident. Business Analyze will use its best efforts and available information to rectify the situation as soon as possible, and to validate a claim and make a good faith judgment on whether the claim is eligible. Business Analyze will use its best efforts to rectify the situation and to process any such claim within 30 days.
5. Errors and error notices
There is an error if the Customer does not have access to the Service, or if the Service has reduced functionality and this is caused by circumstances for which Business Analyze is responsible.
When an error occurs, the Customer shall notify Business Analyze through the Business Analyze’s Support Center specified in clause 4 above, and provide a description of the error and the circumstances of its occurrence according to the notice procedure set out in clause 4 above.
Business Analyze will try to correct errors within reasonable time after the Customer has notified Business Analyze of the error and Business Analyze has confirmed that error correction has started. Upon Business Analyze’s request, the Customer shall provide necessary assistance to reproduce/identify the error incident.
The Customer shall have the right to receive support from our central support department during normal working hours (08.00-16.00 CET Monday thru Friday with the exception of Christmas Eve, New Year’s Eve and other public holidays), or at specific times indicated by Business Analyze.
Support requests are submitted to Business Analyze’s Support Center available from inside the service or from Business Analyze’s website. Support includes Business Analyze’s best effort in solving software problems based on a detailed description, provided by the Customer, of the problem.
Finding a solution is not guaranteed. Administration or configuration of the Service for the Customer is not included in the Agreement.
Support shall be made available in accordance with the following guidelines:
- Customers must nominate a support contact, who will then act as the Customer’s contact point with Business Analyze.
- The Customer will use its best effort and most qualified personnel to search the source of the problem and to share detailed information with the support personnel.
- Cases, which do not comply with the above listed conditions, will be invoiced at the applicable Business Analyze hourly consulting fees.
The Support shall only cover the Service when it is used in a manner recommended by Business Analyze, and as such shall not extend to other configurations in respect of operating systems and browsers and similar. The Support shall also not cover repairs to the content of the databases or issues caused by the Customer.
The Support shall also not cover support of anything outside the Service that the customer subscribes to, or problems that are only associated to the Customer’s hardware, internal networks and internet connections, and/or items of peripheral equipment that are entirely independent of the Service.
Business Analyze reserves the right to recommend a training course or consultancy services if the support takes the form of general training. Business Analyze similarly reserves the right to send the Customer specifications of possible solutions, which the Customer must attempt to implement in order to solve the problem in question.
This Support shall not include any form of consultancy services. The Customer may purchase services as required, in addition to the Support provided according to the Agreement. Such additional Services will be made available on a time and material basis on Business Analyze’s from time to time applicable prices.
There is a breach of Agreement if the parties do not fulfill the obligations defined in the Agreement. It shall not be regarded as a Business Analyze breach of Agreement if the Service is unavailable as a result of errors, or has reduced functionality, or the Customer achieves poor response time as a result of the circumstances outside Business Analyze’s control, or as a result of circumstances related to the Service, given that Business Analyze tries to correct the error within reasonable time.
Business Analyze’s obligation to try to correct the error only extends to what is reasonable under the circumstances. Business Analyze does not give any warranty or promise that the functionality in the Software will cover the Customer’s individual requirements, expectations or needs. Business Analyze gives neither any warranty nor any promise that interruptions or errors will not occur during the operation of the Service. The Customer acknowledges that errors may occur from time to time and waives its right to claim compensation as a result of errors occurring, except as set out above under clause 4.
Business Analyze shall under no circumstances be responsible for indirect losses, including, but not limited to lost profits of any kind, losses as a result of delayed startup of operation or operational disruption, lost goodwill, deprivation and third party claims.
Business Analyze is only liable for errors in the Software if Business Analyze does not try to correct errors that Business Analyze has confirmed that will be tried corrected. No warranty is given that the error may be satisfactory rectified. Any liability is restricted to the Customers documented direct losses, and such liability shall for the whole lifetime of the Agreement be limited to the compensation for one Agreement term. No liability can be claimed as a result of faults or errors in the Software or the Service, unless expressly stated otherwise in this clause 7, cf. however clause 8.
8. Legal defects
If a third party starts legal action claiming that the Service infringes other’s copyright, title or industrial rights in Norway, Business Analyze shall at its own expense defend the Customer’s interest. This should however only apply to the extent the Customer immediately notifies Business Analyze of such claims, that Business Analyze gets full control of the case and that the Customer co-operates with Business Analyze in the negotiations and potential court proceedings. Business Analyze shall in such case cover awarded legal costs and compensation. No other claims than these stated in this clause 8 can be put forward against Business Analyze as a result of legal defects.
9. Personal data processing
The purpose of this clause 9 is to regulate Business Analyze’s processing of personal data on behalf of the Customer whilst providing the Service as further described in the Agreement. In this clause 9, the Customer will be named “Controller”, and Business Analyze will be named “Processor”.
9.2 Controller’s (Customer´s) responsibilities
In order to access the Service, the Controller must provide certain data to the Processor, including correct name, contact data and email address of the users. In addition, the users of the Service must allow the Processor to store and retrieve session information through the use of “cookies” which are necessary to enable the login/logout procedures used in the Service and to ensure that unauthorized persons do not gain access to the Services.
The Controller acknowledges and accepts that any personal data that the Controller uploads onto the Service, such as uploaded personal data pertaining to the Controller’s own customers, may be transferred to a third party based in Norway which will provide for hosting of the Service, including the provisioning of all hardware, infrastructure, data storage and communication lines. Change of the third party above, should be announced if possible with a 60 days’ notice. The obligations of the third party in regards to personal data are set forth in a separate data processing agreement between Processor and the third party within the framework of this clause 9. All data in the Service are stored on servers located in Norway.
The Controller is responsible for ensuring that all Data-subjects (defined as the Controller´s own users), that are registered in the Service by the Controller, are informed of and have given their consent to the personal data to be processed by the Processor as set forth in this Agreement.
The Controller shall in its agreements with the Data-subjects, specify that the Processor and any subprocessors will have access to their personal data. The Controller shall in its agreements with the Data-subjects, expressly state that the Data-subjects, by entering into such agreement, actively consent for the Processor to exploit its access to the data to generate statistics of user patterns that may be used by the Processor’s customer support in order to provide targeted support to the Controller. Furthermore, the Controller shall in its agreements with the Data-subjects, expressly state that the data subjects, by entering into such agreement, actively consent for the Processor to exploit its access to the data to send targeted advertising per email to the Data-subjects and/or the Controller.
The Controller is responsible for complying with the Service’s procedures, guidelines, updates and changes at any given time.
9.3 Processor’s (Business Analyze´s) responsibilities
The Processor shall only process personal data on behalf of the Controller as set forth in this Agreement and to the extent it is reasonable and necessary in order to perform its obligations under the Agreement.
Furthermore, the Processor shall comply with the relevant provisions regarding data privacy and information security of directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, as implemented in the Norwegian Personal Data Act 14.4.2000 no. 31, including the Personal Data Regulations of 15 December 2000 No. 1265 Hereunder the Processor is obliged to take the necessary technical and organizational measures in order to protect the personal data against random/illegal destruction, random loss, and against non-authorized change, distribution
The Processor shall take all reasonable steps to ensure that the registered personal data is correct and updated at all times. Hereunder the Processor shall cooperate with the Controller when the Datasubjects exercise their lawful right to access their own personal data. If the data is not correct, the Processor shall ensure that the data is deleted or corrected.
Unless otherwise agreed in writing and unless it is not allowed for the data to be kept for an indefinite period of time, the Processor shall take all reasonable steps in order to delete the data within reasonable time taking into account the purposes they are collected or processed for.
The Processor shall not give access to or distribute the data to third parties unless it is necessary or allowed for in accordance with this Agreement, or unless the Controller gives its written consent thereto.
Business Analyze and everyone that on behalf of Business Analyze receives information about the Customer and the Customer’s business, relations and other data, marked as confidential information, are obliged to not expose such information to outsiders without the Customer’s consent. This applies accordingly for the Customer.
The Customer shall also protect and keep confidential all other information that Business Analyze provides to the Customer, or information that the Customer becomes aware of; to the extent that the Customer should have understood that the information is Business Analyze confidential information. The obligation to keep information confidential shall remain in force after expiry of this Agreement.
11. Prices and payment
11.1 Running subscriptions
The monthly subscription fee payable for access to the Service is specified on the Initial Order form. The price is calculated on the basis of the total number of Company Plans made available to the Service, multiplied by the price per Company Plan in effect at any given time and on the basis of the total number of users in each User Plan, made available to the Service, multiplied by the price per User Plan in effect at any given time.
If the Customer orders access for additional Company Plans and/or users and User Plans, cf. clause below, the price per company and/or user is the then current Business Analyze official price or, if applicable, the agreed price. The Customer shall be invoiced for added Company Plans and/or users according to User Plans, for the period from the time the order has been confirmed by Business Analyze and to the end of the current Invoicing period. Added Company Plans, and added users, will be included in the total number of Company Plans and the total number of users per User Plan, based to calculate the Subscription fee for subsequent Invoicing intervals.
The Agreement shall be invoiced in advance. The invoice shall cover a period according to the agreed Invoice interval. The first Invoice interval shall be calculated with effect from the turn of the month following the Agreement date.
The Customer may change the Invoice interval. The change will have effect from the next Invoice interval. Prices and subscription fees will be adjusted according to Business Analyze´s official price list.
11.2 Metered services
In the Service, storage space is included up to certain limits. The limits are published on our price pages at www.businessanalyze.com. Usage above these limits, are invoiced on a Pay-per-use principle in intervals and added to the subsequent Invoicing period. Actual usage of metered services are available for Customer´ administrators in the Service. Intervals for the Metered services are published on the official price pages on www.businessanalyze.com
11.3 Additional services
Other services amounts, like approved consulting fees, shall be invoiced after the relevant service has been performed and at the agreed prices.
12. Amendments to the number of Company Plans and to the number of Users covered.
Customer can expand the Agreement to cover additional Company Plans and /or users at any time. These orders shall be issued by e-mail, by using an order form, or by ordering online through the Service itself. The order shall be issued by the person with the authority to commit the Customer. The order is binding for Customer when issued, and becomes part of the Agreement upon Business Analyze’s confirmation of the order via e-mail. The order will be implemented after Business Analyze in writing has confirmed the order. Thereafter, the order is part of this Agreement.
The Customer can reduce the number of users per User Plan for the Service. The reduction of the number of users covered by this Agreement must be done in writing. Reductions will have effect from the end of the current Invoice interval, under the provision that a written notice of such reduction is sent and received at least 30 days prior to the end of the running Invoice interval. If the reduction notice is not issued in accordance with this provision, the Subscription fee will not be reduced until the subsequent Invoice interval, in which this provision of 30 days’ notice is satisfied. Downgrading Your Service Plan (to a User Plan with less functionality), may cause loss of content, features or capacity of the Service as available to You under Your Account, and Business Analyze does not accept any liability for such loss.
Please note that some of the specific feature-sets of the Service requires a minimum number of Company Plans and/or users in specific User Plans. More information on the official price pages on www.businessanalyze.com. The Customer can allocate User Plans to its own users.
13. Termination of Agreement
Each party can terminate the Agreement. The termination of the Agreement must be done in writing and will have effect from the end of the running Agreement period. If the customer terminates before the end of the current agreement period, the customer will still have to pay for the entire Agreement period. A written notice of termination shall be sent to the other party at least 30 days prior to the end of the Agreement period. The termination shall not involve any form of refund of the compensation and shall only indicate that the Agreement will not be extended for a subsequent Agreement period.
If the notice of termination is not issued in accordance with the provisions in the first paragraph, the Agreement shall be automatically renewed for a new Invoice interval. If the Customer fails to make payments when payments are due, or falls into arrears or otherwise does not full-fill its obligations pursuant to the Agreement, Business Analyze shall have the right to terminate the Agreement with immediate effect. Business Analyze shall have the right to suspend user login, when outstanding payments remain after notice from Business Analyze.
14. Transfer of data
Upon request by The Customer within 30 days after the effective date of termination or expiration of this Agreement, Business Analyze will make The Customers Data available to The Customer’s main user (the Administrator) for download. After such 30-day period, all data belonging to the Customer will be removed from Business Analyze’s servers and facilities.
Business Analyze reserves the right to withhold, Customer data for any breach of this Agreement, including, non-payment.
15. Transfer of rights
Business Analyze can in whole or partly, transfer its rights and/or obligations pursuant to this Agreement, as long as this does not substantially hurdle the performance of the Agreement. This should be announced if possible with a 30 days’ notice. The Customer cannot transfer its rights and obligations pursuant to this Agreement without Business Analyze´s written approval. Such approval cannot be unreasonably rejected. Business Analyze can in whole or partly let its obligations pursuant to the Agreement be performed by a third party, and Business Analyze may use Sub-suppliers.
16. Customer news
The Customer agrees that Business Analyze from time to time can send the Customer and Users relevant information, including marketing materials from Business Analyze, unless the Customer specifically asks not to receive such information. Note that because this Service is an online software service, it may be necessary to send all Customers and users important information or notification related to the operation of the Service from time to time. Such notifications include any who otherwise have opted-out from receiving relevant information.
Business Analyze will not at any time provide Customer data or personal information to any third party for any purpose other than assisting Business Analyze in the operation and delivery of the Service. Customer agrees that Business Analyze may disclose Customer as a customer of Business Analyze and use Customer’s name and logo on Business Analyze’s web site and in Business Analyze’s promotional materials.
17. Changes in contact information
All changes in the Customer’s contact information, including address changes and changes of the Customer’s contact person with the authority to commit the Customer, shall be communicated in writing to Business Analyze. The Customer undertakes to provide correct information regarding the User’s identity and a correct and legitimate e-mail address at all times.
From time to time, Business Analyze may modify this Agreement. Unless otherwise specified by Business Analyze, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. All Customers will be informed of such modifications by email or through the information being made available on Business Analyze’s websites or Customer support pages.
19. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
The rights and obligations of the parties under the Agreement shall in their entirety be governed by Norwegian law. If a dispute arises in connection with the interpretation of the Agreement, the parties shall attempt to resolve the dispute through amicable negotiations. If the dispute cannot be resolved in this way, it shall be referred to the ordinary courts of law at Oslo, Norway, as the exclusive venue.