GENERAL TERMS AND CONDITIONS
TABLE OF CONTENTS
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Updated version August 2023
1. Introduction
These general terms are part of the Agreement entered into between Fynd Reality AS (hereinafter referred to as Fynd) and the Customer regarding the provision of services from Fynd to the Customer.
The services provided to the Customer under this agreement are further described in the Service Order.
The Agreement outlines the terms that apply to Fynd’s delivery and the Customer's use of services. In case of conflicts between the provisions in the Agreement, the agreement documents shall take precedence in the following order:
- The Front Page.
- Service Order form, with newer versions taking precedence over older versions.
- General Terms and Conditions.
- Other documents in the order specified in the Front Page.
2. Scope of the agreement
Fynd grants the Customer a non-exclusive, non-transferable, revocable, and limited right to access and use the Services specified in the Service Order. The Customer's right of use is subject to the terms, prices, and conditions set forth in the Agreement and applies to access the latest available version at any given time.
The Services are provided by Fynd.
The right of use is solely for the Customer's own use and benefit. The Service Order may allow for the right of use for one or more of the Customer's Affiliated Companies.
Infrastructure and equipment necessary for accessing and using the Service, including hardware, internet access, etc., shall be provided by the Customer at the Customer's expense. FYND assumes no responsibility for errors or deficiencies in such infrastructure or equipment.
If the Customer relies on Third-Party Products for access to and use of the Services, the Customer is responsible for entering into agreements related to such third-party products. The Customer has full responsibility for such use.
3. Definitions
"Affiliated Company". One party's Affiliated Companies are entities that directly or indirectly control the party, are under the control of the party, or are under the control of the same company as the entity. Control, in this context, means that a party has 1) more than 50% of the voting rights to appoint board members in the company, or 2) more than 50% ownership in the company.
"Agreement". The Agreement includes the Front Page, these General Terms and Conditions, the Service Order form, and all other appendices specified on the front page, as well as subsequent additions and amendments.
"Confidential Information" includes the terms of the agreement and any other business-related information related to the other Party that a Party receives or gains access to directly, indirectly, in writing, or otherwise, before or after entering into this Agreement. This includes discussions related to the Services, information about the other party's business, internet access, access codes, trade secrets, processes and techniques, software (including source and object code), protocols, hardware configurations, design, plans, development, inventions, drawings, product information, business and marketing plans, details of agreements with third parties, and customer lists. Personal data is governed by a data processing agreement and is not considered Confidential Information in these General Terms.
"Effective Date". The start date of the Agreement, which is the date of the last signature on the Front Page.
"Fynd CORE platform" (or Platform, or CORE). The software platform Fynd CORE, operated by Fynd, which provides functionality and applications that the customer has access to.
"Party" includes the Fynd company that has signed the Front Page (referred to as "Fynd") or the Customer separately. Collectively referred to as "the Parties."
"Services" means access to the FYND Platform, which provides the Customer with access to basic functionality and other additional services as described in the relevant Service Order.
"Service Order" means written orders for one or more Services, signed by both Parties.
"User" refers to individuals whom the Customer has granted the right to log in and use the Services on behalf of the Customer.
"Admin User" refers to individuals whom the Customer has granted the right to log in, set up sessions for users, and use the Services on behalf of the Customer.
4. Terms of use
The Customer understands that all use of the Services is subject to the following conditions:
a) The Customer shall ensure that account information, including passwords, other login credentials, and all activity related to the Customer's use of the Service, is kept confidential and remains confidential. If account information becomes accessible to third parties, or if the Customer becomes aware of anything that may jeopardize the security and integrity of the Services, the Customer shall immediately notify Fynd.
b) The Platform shall not be shared outside of the Customer's organization.
5. Suspension
Fynd may, without notice and with immediate effect, suspend the Customer's access to or use of the Services if:
a) Fynd has reasonable grounds to suspect that the Customer is in violation of the Agreement or applicable law. b) If the Service or Fynd’s technical infrastructure may be jeopardized.
In case of non-payment, Fynd reserves the right to suspend the Customer's access to or use of the Services, provided that outstanding amounts are not paid within five (5) business days after receiving a notice of payment default from Fynd. Fynd shall promptly notify the Customer of such suspension, the reasons for the suspension, the likely duration, and any other information reasonably requested by the Customer. Suspension as described above does not release the Customer from its obligation to pay all amounts due under the Agreement for the remainder of the contract period.
6. Delivery Time
The Customer will receive the information necessary to use the Services, including login credentials and passwords. If the Customer does not notify Fynd of any deficiencies or errors within 14 days from the receipt of the information, the Service is considered to be delivered and accepted by the Customer.
7. Service Availability
Fynd shall allocate sufficient and necessary expertise to ensure that the delivery complies with the Agreement and shall provide the Services with the necessary skill and care.
Service availability shall be in line with what can be expected from a generally good equivalent solution in the market unless otherwise explicitly agreed upon in the SLA (Service Level Agreement) or Service Order.
If the expected service availability is not met, the Customer may terminate the contract. However, the Customer is not exempt from their obligation to pay all amounts due for the Services used under the Agreement.
8. Support Services
The Services include Support Services, unless otherwise agreed upon in the Service Order, the following terms apply:
The Customer can contact Fynd by email or phone Monday to Friday between 08:00 and 16:00 (Norwegian time). All support inquiries should be directed to the number or email address provided for the designated contact person on the Front Page.
Fynd does not provide Support Services between 16:00 and 08:00, on public holidays in Norway, or on weekends. Support Services during these periods can be provided as a payable service, which will be billed to the Customer at Fynd’s regular hourly rates.
The Customer should ensure that they have a sufficient number of Super Users. The Customer should make a reasonable effort to resolve any issues before contacting Support Services. If the particular issue could have been resolved by a Super User with the necessary effort and skill, Fynd may bill the Customer on a per-hour basis for the Support Services provided.
Error reports should always be submitted in writing to Fynd, through the Bug report feature in Fynd CORE. If the error is critical, the Customer should also contact Fynd by phone. The Customer should immediately notify Fynd if they discover that a reported error is not related to the Service(s) offered by Fynd.
9. Payment
9.1 Price
The Parties have agreed upon the price for the Services as specified in the Service Order or other appendices indicated on the Front Page.
VAT and other taxes and duties will be invoiced in accordance with applicable rates and regulations.
If the Customer is obligated by the rules of a country to withhold tax that would otherwise have been paid to Fynd under this agreement, the Customer shall increase its payment so that the amount received by Fynd corresponds to the full amount Fynd would have received without the said obligation.
9.2 Invoicing
License costs are invoiced from the day the agreement is signed. Unless otherwise agreed, invoices are due for payment within 30 days, from the date the respective invoice was issued by Fynd.
If the Customer's organization number is registered in «ELMA-registered», invoices will be sent to the Customer in Electronic Commerce Format (EHF). Invoices will otherwise be sent via email or regular mail.
Fynd reserves the right to impose an invoicing fee, as specified in the currently applicable price list.
9.3 Price Adjustments
Prices will be subject to an annual adjustment corresponding to the increase in the Labor Cost Index. The Customer shall be notified in writing of any other price adjustments at least thirty (30) days before the price adjustment takes effect. If the increase exceeds an increase based on the Labor Cost Index for the relevant period, the Customer may terminate the Agreement with effect from the date the price adjustment comes into effect.
9.4 Late Payment Interest
In case of delayed payment under the Agreement, the highest possible late payment interest rate according to applicable statutory rules on late payment interest will accrue.
9.5 Complaint Deadline
For compliance with data privacy laws, Fynd will delete or anonymize personal data in the Services three (3) months after sending the invoice for the specific processing. Questions regarding the specific invoice or processing of personal data must, therefore, be directed to Fynd no later than two (2) months after the Customer has received the invoice.
10. Marketing
Fynd may use the Customer's trademark or other identifiers in connection with marketing, provided that Fynd has obtained the Customer's written consent for each specific case concerning the form, content, and platform of the marketing
11. Intellectual Property Rights
11.1 Customer's Intellectual Property Rights
All of the Customer's Intellectual Property Rights as of the Effective Date, and all rights, claims, and interests in the Customer's existing technology, products, and works, as well as all associated and related material as of the Effective Date, shall remain with the Customer.
The Customer owns the Content that is uploaded or otherwise provided through the use of the Service. Unless specifically agreed for specific Services, customer-generated content will not be transferred by the Customer's use of the Services.
The Customer grants Fynd the right to use such customer-generated Content to fulfill Fynd 's obligations to the Customer under the Agreement.
11.2 FYND's Intellectual Property Rights
All of Fynd's Intellectual Property Rights as of the Effective Date, and all rights, claims, and interests in Fynd's existing technology, products, and works, as well as all associated and related material as of the Effective Date, including, but not limited to, rights related to the Services, shall remain with Fynd or Fynd's licensors.
All rights, claims, and interests in and to Intellectual Property Rights in the Services and any other of Fynd's deliveries to the Customer shall remain with Fynd or Fynd's licensors.
12. Breach and Limitation of Liability
12.1 Breach
Failure to comply with a Party's obligations under the Agreement constitutes a breach of the Agreement.
The Defaulting Party shall promptly and at its own expense remedy the breach.
Both Parties are fully responsible for the actions and omissions of their subcontractors as if the Party itself had performed the action or omission.
The Defaulting Party shall compensate the injured Party for its financial loss resulting from the breach, within the limitations specified in section 12.5.
12.2 Complaint
The Customer shall notify Fyndof the breach as soon as possible and no later than seven (7) days after the event that is alleged to constitute a breach occurred.
12.3 Disclaimer of Warranties
The Services are sold "as is." To the extent permitted by law, Fynddisclaims all warranties, whether express or implied, statutory or otherwise, including, but not limited to, warranties of functionality, fitness for a particular purpose, or absence of third-party infringements.
Fynd does not warrant that the Services are error-free, that the use of the Services will be uninterrupted or error-free, or that the Services do not contain viruses.
12.4 Customer's Undertaking
The Customer undertakes that its use of the Services complies with the Agreement and that all information and Content distributed, displayed, or otherwise communicated or made available through the Customer's use of the Services at all times complies with applicable law.
12.5 Limitation of Liability
Neither Party is liable for the other Party's indirect loss (including loss of data, revenue, or profit) arising under this Agreement, whether based on breach of contract, negligence, breach of warranty, or other factors.
The above limitation does not apply to loss attributableto (a) a breach of section 13 (Confidentiality), (b) grossly negligent or willful misconduct, (c) the Parties' liability under section 11 (Intellectual Property Rights)
13. Confidentiality
13.1 Confidentiality Obligation
The Parties shall not use or disclose to any person Confidential Information during or after the Agreement period, except for purposes consistent with the administration and exercise of a Party's rights or duties under this Agreement, or as required by law or regulation.
The Parties shall treat as confidential, maintain, retain, and protect Confidential Information regarding the other Party with a degree of protection and care at least equivalent to the protection the Party affords its own Confidential Information.
13.2 Exceptions
Confidential Information shall not include information that:
a) the receiving Party already possesses and is not subject to confidentiality,
b) is provided to the receiving Party by a third party, other than any relevant third party under this Agreement, without violating any specific confidentiality agreements,
c) is already publicly available without breaching the Agreement.
14. Duration and Termination
14.1 Duration
The Agreement enters into force on the Effective Date and runs for a period as specified on the Front Page. The Agreement continues thereafter until terminated with a minimum of three (3) months' written notice or as otherwise indicated in the Service Order.
14.2 Termination
Both Parties may terminate the Agreement if the other Party materially breaches the Agreement, and such breach is not remedied within thirty (30) days after the Defaulting Party was notified of such breach by the other Party. Fynd may terminate the Agreement if the Customer fails to pay when due, and such non-payment continues for a period of thirty (30) days after the Customer has received notice of such non-payment.
Both Parties may terminate the Agreement by written notice to the other Party if the other Party becomes insolvent or is unable to pay its debts as they fall due or is liquidated or dissolved, either voluntarily or as required by law.
14.3 Parties' Obligations Upon Termination of the Agreement
Upon termination of the Agreement, the Customer shall be provided with access to retrieve its data before termination. If the Customer requires further access or transfer after termination, Fyndmay, upon request, provide limited access for up to 30 days after termination. After this additional period, Fynd will delete the data.
15. Independent Providers
The Agreement shall not constitute or create a partnership, joint venture, employment relationship, or franchise between the Parties, and the Parties act as independent providers in the fulfillment of the Agreement. Nothing in the Agreement shall be construed as a limitation on Fynd's marketing or distribution activities or Fynd's right to sell, license, or offer the Services to third parties.
16. Changes to the Service
Fynd reserves the right to make adjustments and changes to the Services with reasonable notice to the Customer.
17. Force Majeure
Each Party is exempt from fulfilling its obligations under the Agreement if the inability to perform results from compliance with legal requirements, fire, strikes, trade embargoes, terrorist attacks, disrupted internet services, power outages, epidemics, floods, earthquakes, or other natural disasters, war, riots, or other causes beyond the reasonable control of the Party. In such a case, the Parties will seek an amicable resolution through negotiations.
To be exempted from obligations under this section 17, the Party claiming Force Majeure shall notify the other Party in writing within five days, from the occurrence of the relevant event.
If the Force Majeure event lasts for more than two months, either Party may terminate this agreement with fourteen (14) days' notice.
18. Notices
All notices, requests, and other communications related to the Agreement shall be in writing (including email) and shall be deemed duly delivered or received when delivered in person, by mail, or by email to the other Party's address as specified on the Front Page.
In the event of changes in contact persons, a Party shall notify the other Party of the changes at least ten (10) days before the changes take effect. If a Party has not notified the changes as described herein, all notices sent to the specified contact persons shall be deemed correctly delivered.
18.1 Changes After Agreement signing
Ordering additional Services or modifying existing Services during the Agreement period shall be agreed upon in writing between the Parties in a new or amended signed Service Order. Additional charges may apply. The Customer may submit change requests to Fynd, but a new Service Order shall not take effect until signed by both Parties.
Fynd reserves the right to update or modify the General Terms and Conditions with written notice to the Customer. The Customer is deemed to have accepted the changes if the Customer does not object to them within 30 days after notice.
Other changes to the Agreement require a written amendment agreement signed by both Parties.
18.2 Dispute Resolution
The Agreement shall be governed by and interpreted in accordance with the laws of Fynd's place of business (excluding conflict of law rules).
Disputes, disagreements, or claims arising from or in connection with the Agreement shall be attempted to be resolved amicably through negotiations. If an amicable resolution of the dispute is not possible, any dispute or claim related to this Agreement shall be brought before the court at Fynd's place of business.