#MainAgreement

Main Agreement Terms

1. Main Agreement Terms

1.1  This main agreement term (the “Main Agreement”) sets out the general terms and conditions for all of the Customer’s purchases, as ordered in one or several Sales Orders, of different products and services offered from time to time by Novacura.

1.2  Any products and/or services to be provided hereunder must be agreed in a Sales Order referencing this Main Agreement.

2. Marketing

Subject to Customer’s prior written approval, Novacura and its affiliates and partners have the right to identify the Customer as a user of Novacura’s products and services in advertising or marketing materials.

3. Confidentiality 

3.1 All information, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a Party, any of its affiliates or to any of its business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”) or which the Receiving Party has or may otherwise become aware of in connection with the preparation, negotiation, entry into or performance of this Agreement, shall at all times be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of this Agreement, nor be disclosed by it to any third party without the prior written consent of the other Party (such consent not to be unreasonably withheld).

3.2 The restrictions in section 3.1 shall not apply to information:

  • to the extent reasonably necessary to be used or disclosed by the Receiving Party in order for it to secure its interests against the other Party in connection with a dispute, controversy or claim arising out of or in connection with this Agreement or to otherwise enforce its rights under this Agreement;

  • that was at the time of its disclosure or which becomes thereafter generally available to the public otherwise than as a consequence of a breach by this Agreement;

  • that was already known to the Receiving Party or otherwise in its possession prior to the time of its disclosure;

  • that was obtained by the Receiving Party in good faith without restriction from a third party; or

  • that the Receiving Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other marketplace.

The Party using or disclosing any information or documentation with reference to any of these exceptions bears the burden of proof to establish that the relevant exception applies.

3.3 When the Agreement is terminated, for any reason whatsoever, the Receiving Party shall return to the other Party any confidential information as described in section 3.1 (including all copies, summaries and extracts thereof) furnished by the disclosing Party in connection with the transactions contemplated hereby.

4. Limitation of Liability

4.1 WITHOUT LIMITING ANY SPECIFIC LIMITATIONS OF LIABILITY ELSEWHERE IN THIS AGREEMENT, THE TOTAL AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY APPENDICES), WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA PURSUANT TO THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.

5. Termination

5.1  Unless otherwise agreed in the Sales Order, the Agreement is valid for a specific term, if specified in the Sales Order or in any other documentation agreed between the Parties. Unless terminated at least six (6) months prior to the expiry of such agreed term, or in the event that no specific term has been agreed, the Agreement, or Sales Order as applicable, shall be valid for an indefinite period of time until terminated by either Party giving six (6) months written notice. Sections containing rights and obligations which to their nature are such that they should remain in force also after the expiry of the Agreement shall remain valid and in force until the expiry of such right or obligation.

5.2  Either Party shall have the right to terminate the Agreement with immediate effect by a notice in writing:

  • where a Party is in material breach under this Agreement and fails to remedy such breach within thirty (30) days after receipt of written notice from the non-breaching Party specifying such breach. The Customer shall, however, always be obliged to limit its termination to the specific services directly subject to the material breach; or

  • if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganization proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership.

5.3  Novacura has the right to terminate the Agreement with immediate effect by a notice in writing if there is a change of control of the Customer (a change in the direct or indirect control of fifty (50) % or more of the registered share capital or voting rights).

5.4 Customer has the right to terminate the Agreement with immediate effect by a notice in writing if there is a change of control of Novacura (a change in the direct or indirect control of 50% or more of the registered share capital or voting rights) to a Sanctioned Entity. A “Sanctioned Entity” means (i) an individual or entity being subject to Sanctions or similar restrictions or being controlled by an individual or entity being subject to Sanctions or similar restrictions; or (ii) an individual or entity that is reasonably likely to become subject to Sanctions or similar restrictions or being controlled by an individual or entity that is reasonably likely to become subject to Sanctions or similar restrictions (e.g., due to being subject to an exemption from Sanctions). “Sanctions” means the economic sanction laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the European Union, the United Nations, the United States of America or Sweden and their respective institutions and agencies.

5.5 This Agreement may only be terminated by Customer by providing written notice of termination to the Novacura. To ensure clarity and avoid disputes regarding the receipt of such notice, any notice of termination under this Agreement shall be deemed valid and effective only if it is sent to the following designated email address: termination@novacura.com. The notice of termination must include the name of the party providing notice, the date of the notice, and a clear statement of intention to terminate this Agreement including which parts of the Agreement that is to be terminated.

Upon sending the termination notice to the designated email address, the terminating Party is advised to retain proof of the email transmission and receipt, such as a sent email confirmation or a delivery/read receipt, as evidence of the termination notice’s submission and delivery.

5.6  This Agreement or part thereof may also be terminated if explicitly set out elsewhere in this Agreement (including the Customer’s right to terminate due to adjusted fees subject to the conditions set out in the applicable Novacura General Terms).

6. Force Majeure

6.1  Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is impeded or made unreasonably onerous by a circumstance beyond the reasonable control of such Party, including but not limited to fire, war (whether declared or not), extensive military mobilization, insurrection, requisition, seizure, embargo, pandemics, epidemics, restrictions in the use of power and defects or delays in deliveries by Novacura’s subcontractors caused by any such circumstances referred to in this section.

6.2 The Party claiming to be affected by force majeure shall notify the other Party in writing without delay on the intervention and on the cessation of such circumstance. If such notice is not provided without undue delay, the right to claim force majeure shall be lost.

7. Entire Agreement

The Agreement constitutes the entire agreement between the Parties on all subject matters or issues to which the Agreement relates. The content of the Agreement supersedes all previous written or oral agreements, commitments and undertakings.

8. Order of Precedence

In the event of conflict between the terms of the documents constituting this Agreement, the conflicting terms shall, to the extent reasonable, be interpreted so that such terms are consistent, and such consistent interpretation will take precedence. Otherwise, such conflict shall be resolved in favour of the appendix addressing the subject matter giving rise to such conflict. The terms of this Main Agreement and the applicable appendices shall always prevail over any conflicting terms set forth in the Sales Order.

9. Amendements

No amendments to the Agreement shall be valid unless made in writing.

10. Severance

If any provision of this Agreement is held to be invalid or unenforceable by any competent court, authority or arbitral tribunal, the remainder of that provision and all other provisions will remain valid and enforceable to the fullest extent permitted by applicable law, and the Parties shall negotiate any necessary changes to this Agreement to maintain the spirit of this Agreement and the framework, structure and operation of the transactions contemplated by this Agreement.

11. Transfer of Agreement

11.1 Neither Party shall be entitled, without the prior written consent of the other Party, to assign or pledge its rights or obligations under the Agreement.

11.2 Either Party shall, however, be entitled to assign its rights and obligations to another party acquiring all or substantially of the assets or business of such Party by giving the other Party notice.

11.3 In the event that this Agreement is entered into by an affiliate partner of Novacura, and the license granted hereunder is granted as a sub-license, such entity shall have the right to transfer all rights and obligations under the Agreement to Novacura.

12. Miscellaneous

12.1 The Parties are independent legal entities that act and trade under their own names, for their own accounts and on their own risks. A Party may in no respect represent the other Party or enter into any agreements or other commitment on the other Party’s behalf.

12.2 All correspondence and notifications pursuant to this Agreement shall be in email to the duly authorized representative of the other Party in English and shall be deemed to have been duly received on the day of sending.

13. Escalation, Governing Law and Disputes

13.1  Either Party may, by giving written notice to the other Party (an “Escalation Notice”), request a meeting between one (1) duly authorized representative from each Party (each a “Sponsor”) to resolve a dispute between the Parties (the “Escalation Process”). For purposes of this section 13, a Sponsor means the representatives who have undersigned this Agreement, representatives of equivalent position or above, or delegates as nominated in writing by either of them.

13.2  The Escalation Notice shall describe in general terms the nature of the dispute, the initiating Party’s position, and a summary of the information supporting the position. The Party receiving the Escalation Notice shall send the other Party a response to the Escalation Notice within fourteen (14) days of receipt of the Escalation Notice, and the Sponsors will have at least one (1) meeting within thirty (30) days of receipt of the Escalation Notice to discuss and attempt to resolve the dispute. Such meeting will be conducted at a reasonable time to be agreed between the Sponsors and may be carried out by telephone, videoconference or in person meeting.

13.3 The Sponsors can, by written agreement, extend this thirty (30) day period and/or ask for more than one (1) meeting, and each Sponsor will act reasonably in considering a request from the other Sponsor, having regard to whether that Sponsor considers that the extension and/or additional meeting is likely to assist the Parties in resolving the dispute within the Escalation Process.

13.4  Each Party must, to the extent possible, continue to perform its obligations under the Agreement even if there is an ongoing Escalation Process or dispute.

13.5  This Escalation Process will not prohibit either Party from exercising any of its rights under this Agreement (including without limitation any right to suspend any products and/or services specified in the Sales Order or terminate the Agreement).

13.6 This Agreement (including all appendices hereto) shall in all respects be governed by and construed in accordance with the laws of Sweden excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.

13.7 Any dispute, controversy or claim arising out of or in connection with this Agreement, termination or invalidity thereof, that cannot be settled by the Escalation Process, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”). The Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. In the latter case, the SCC shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.

13.8 The language to be used in the arbitral proceedings shall be Swedish to the extent the Parties are both Swedish. In other cases, the language shall be English.

13.9 The arbitral proceedings shall be held in Gothenburg.

13.10 The SCC may, at the request of a Party, consolidate two or more arbitrations pending under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce into a single arbitration, where (i) the Parties have agreed to consolidation, or (ii) all of the claims in the arbitrations are made under the arbitration agreement in this section 13. In deciding whether to consolidate, SCC may take into account any circumstances it considers to be relevant, including whether one or more arbitrators have been confirmed or appointed in more than one of the arbitrations and, if so, whether the same or different persons have been confirmed or appointed. When arbitrations are consolidated, they shall be consolidated into the arbitration that commenced first, unless otherwise agreed by all parties.

14. Entitled Companies/Organisations

14.1  The Customer may request delivery of software licenses or services to affiliates of the Customer, where the Customer has fifty (50) % or more ownership.

14.2  To the extent the Customer also requests the invoice for such licenses or services to be addressed to such other company within the Customer group of companies, the Customer is acting with authorization for such other company. If such other company is not paying the invoice, Novacura is entitled to demand full payment from the Customer.

#CloudService

General Terms for Cloud Service

1. Background

These General Terms and Conditions for Cloud Services (in this document; the “General Terms”) describes the Customer’s rights and the conditions upon which the Customer may use the Service(s) ordered by the Customer under a Sales Order. The Service can e.g. consist of different editions of the Novacura Flow platform and/or of individual Base Applications as set forth in the Sales Order.

2. Service Commencement Date

Upon the Service Commencement Date and during the Subscription Term, Novacura shall make the Service available to the Customer from the Connection Point in accordance with the Agreement and as set forth in a Sales Order.

3. Novacura Flow

Functionalities
The Service provided under this Agreement includes the functionalities that have been specified in the Sales Order and are further described in the Service Description, such as Novacura Flow Server, Novacura Flow Studio, Novacura Flow Runtime and Novacura Flow Portal.

4. Local Software

4.1 In order for the Service to work properly, the Customer may need to install Local Software provided by Novacura. The Customer is hereby granted a limited and non-exclusive license to use such Local Software during the Subscription Term for the purpose of utilizing the Service pursuant to the terms and conditions of the Agreement.

4.2 Notwithstanding anything to the contrary in the Agreement, the Agreement does not apply in respect of Local Software that constitutes Third Party Products. All third party licensors retain all right, title and interest in and to such Third Party Products. Unless otherwise agreed in writing, the Customer’s use of such Third Party Products is subject to the generally available third-party license terms applicable to the respective Third Party Product

5. Applications

5.1 Base Applications
Base Applications are standardized templates or applications provided by Novacura. Base Applications can consist of ready to use applications or of components that can be used as parts of a developed application. Novacura offers the Customer the possibility to purchase Base Applications subject to the prices set forth in Novacura’s at each time applicable price list, unless otherwise agreed in the Sales Order. Some Base Applications may be provided as free templates without cost. Base Applications can be purchased on a stand-alone-basis as an individual Service, or as an add-on to the Novacura Flow platform in which case it will become an integrated part of the existing Service.

5.2 Customized Applications
A Customized Application consists of a Base Application modified by or on behalf of Novacura AB The fees payable for customization work will be agreed upon in the applicable Sales Order. Upon the creation of a Customized Application, such Customized Application will become an integrated part of the Service. The monthly Service Fee payable for a Customized Application will be agreed upon in the applicable Sales Order. Any and all intellectual property rights to Customized Applications shall be held by Novacura AB (note that Customer has the opportunity to obtain intellectual property rights to its bespoke developed or adjusted applications as a Customer Application subject to the terms set out in Section 5.3 below).

5.3 Customer Application
A Customer Application consists of either (i) an unlocked Base Application modified by or on behalf of the Customer, or (ii) an application independently developed by or on behalf of the Customer (not being based on a Base Application). In order to obtain the right to independently modify a Base Application, the Customer must first unlock the Base Application. The fee payable for unlocking the Base Application is set forth in Novacura’s at each time applicable price list, unless otherwise agreed in the Sales Order. Customer Applications do not become part of the Service (whether modified or developed by Novacura, Customer or a third party). Customer, or its contractor, will retain all intellectual property rights relating to the modifications and/or developments of the Customer Application. For the avoidance of doubt, any and all intellectual property rights to the unlocked Base Application shall remain with Novacura AB and Customer’s use of the Base Application as a base for its Customer Application is subject to these General Terms. Except as set forth in this Agreement, Customer may not copy, sell, resell, transfer, otherwise distribute, or grant any sublicenses or in any other way grant a right for a third party to use any Customer Application, which is based on a Base Application.

5.4 Development Services
Customer may subscribe to a fixed number of consultancy hours per month to be used for customization or development of applications (“Development Services”). The subscription shall be set forth in the Sales Order. The performance of Development Services shall be governed by the General Terms for Consultancy Services.

6. Availability of the Service

6.1 Novacura shall use commercially reasonable efforts to make the Service available during the Service Time, excluding any Permitted Downtime and Downtime caused by (i) circumstances attributable to the Customer, such as faults in the Customer’s equipment or software, (ii) the Customer’s breach of its obligations under this Agreement, or (iii) force majeure events or other external factors such as power failure or failure of communications.

6.2 If the measured Availability is below the service level specified in the Service Description, in any calendar day, Customer will be entitled to a credit against Customer’s next invoice equal to 1/365 of the yearly Service Fee for the affected Service paid or payable by the Customer for the year during which the agreed Availability was not reached.

6.3 The Customer’s right to a standardized reduction of the Service Fee pursuant to section 6.2 shall be the Customer’s sole and exclusive remedy for Novacura’s failure to reach the agreed level of Availability.

6.4 Novacura may suspend the Services for the purpose of preventing misuse of the Services and protect the integrity of the Services if Novacura reasonably determines that (a) the Customer’s or User’s use of the Services (i) violates law, or (ii) violates the terms and conditions of the Agreement, the Acceptable Use Policy, or any other applicable end user license agreement, or (b) any use of the Services by Customer, User or a third party poses a security risk or threat to the function of the Services, Novacura, Novacura affiliates or any third party, provided that Novacura uses commercially reasonable efforts to notify Customer of such suspension and provide estimated time for restoration of the Services.

7. Maintenance and support

7.1 Novacura will provide the Customer with access to a support desk with qualified and competent personnel in accordance with the terms stated herein. The Support Center is available at http://support.novacura.com and is further described in the Service Description.

7.2 During the Subscription Term Novacura may in its sole discretion make changes and updates to the Service and improve the Service by implementing new versions or updates. Such new versions and/or updates will be included in the Service Fee.

8. Customer obligations

8.1 The Customer shall provide Novacura with all necessary access and assistance required for the performance of Novacura’s undertakings under these General Terms.

8.2 The Customer shall continuously review documents, make necessary decisions and provide Novacura with all adequate information, which is necessary for Novacura to be able to fulfil its undertakings.

8.3 The Customer shall be responsible for the equipment used to access the Service as well as the communication between the Customer and the Connection Point. The Customer shall furthermore be responsible for that it has the equipment, software and systems that are required for the performance of the Service and/or that the Customer Software, if necessary, can communicate and work together with the Service. The Customer is consequently responsible for any faults and non-conformities in the Customer Software.

8.4 The Customer shall be responsible to procure the necessary licenses and any other rights to Customer Software that is required to utilize the Service provided by Novacura.

8.5 The Customer shall ensure that (a) any Customer Software and/or Customer Data is free of viruses, Trojan horses, worms or other harmful software or code, (b) any Customer Software is in the agreed format, and (c) any Customer Software cannot, in any way, harm or adversely affect Novacura’s systems or the Service.

8.6 The Customer shall ensure that log-in information, security procedures and other information to which Customer and/or the User have access in order to use the Services, is treated confidentially in accordance with the confidentiality obligations set forth in the Main Agreement. The Customer shall immediately inform Novacura in the event of any security breaches (or attempts thereof) or unauthorized person having obtained knowledge of information pursuant to this section 8.6.

8.7 The Customer warrants that it has the right to use and upload the Customer Data to the Service and that the Customer Data do not infringe any rights of a third party or makes unlawful use of a third party’s trade secrets.

8.8 The Customer acknowledges that Novacura Flow will transmit information about the Customer’s use of Novacura Flow to Novacura. The Customer approves the transmission of this information and is responsible for obtaining any necessary permits or approvals for the transmission.

8.10 The Customer acknowledges and agrees that Novacura and its affiliates and partners may have access to Customer Data and may need to use Customer Data for the purposes of fulfilling its obligations under the Agreement.

8.11 The Customer will be responsible for (a) Users’ compliance with this Agreement, the Acceptable Use Policy and any end user license agreement that may be enforced by Novacura from time to time, (b) the accuracy, quality and legality of Customer Data, (c) Customer’s use of Customer Data with the Service, and (d) the interoperation of any Customer Application or a third party application provided by Customer which is used with the Service.

9. Intellectual property rights

9.1 Any intellectual property rights, including all other rights to the Service (including but not limited to Novacura Flow, Base Applications and Customized Applications), underlying software and know-how to the Service, Local Software, and documentation related thereto, are the sole property of Novacura AB or its licensors. Nothing in the Agreement shall be construed to transfer any ownership to the Customer. In case Customer enters into the Agreement with another supplier party than Novacura AB (i.e. a Novacura AB affiliate or partner), any licenses granted in these General Terms is a sub-license.

9.2 The Customer is only allowed to use the Service and Local Software for its internal business purposes in accordance with this Agreement and shall, unless otherwise specifically agreed in the Sales Order, under no circumstances resell or use (standalone or bundled) the Service or Local Software for any other purposes.

9.3 Access to the Service and right to use Local Software shall be granted only to the number of Users explicitly set forth in the Sales Order. The subscriptions provided under these General Terms can be a full User subscription or a limited subscription as set forth in the Sales Order. Examples of limited subscription forms are e.g. subscriptions restricted to named User’s right to operate only Novacura Flow Portal or specific workflows, or the right for the Customer’s Users to execute a maximum number of workflows per month. It is strictly forbidden for the Customer to breach the subscription terms set forth in the Sales Order, e.g. by allowing several Users to access the Service through a User account designated for a single User.

9.4 The Customer is not entitled to:

  • transfer, grant any sublicenses or in any other way grant a right for a third party to use the Service or Local Software without the prior approval of Novacura. Notwithstanding the foregoing, the Customer may allow external contractors to use the Service and Local Software for the Customer’s internal purposes;
  • develop or make any amendments to the Service or Local Software; or
  • decompile or reverse engineer the source code of the Service or Local Software except to the extent expressly permitted by mandatory law.

10. Warranty

10.1 Novacura warrants that (i) the Service will be provided with reasonable skill and care, and in a professional manner in accordance with industry practice, (ii) the Service will perform materially in accordance with the Service Description, and (iii) the functionality of the Service will not materially decrease during the Subscription Term.

10.2 Novacura warrants that (i) the Local Software will perform materially in accordance with the Service Description, (ii) the functionality of the Local Software will not materially decrease during the Subscription Term, and (iii) Novacura shall make commercially reasonable efforts to remedy any material non-performance with the above.

10.3 Notwithstanding anything in this section 10, Novacura shall during the Subscription Term be entitled to make changes to the Services and/or Local Software in order to adapt the functionality of the Service and/or Local Software to changed technical standards, as well as exclude compatibility with technical standards that Novacura in its reasonable discretion deems outdated.

10.4 NOVACURA DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO QUALITY, MERCHANTABILITY, OPERABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NOVACURA PROVIDES ALL APPLICATIONS, LOCAL SOFTWARE AND THE TECHNICAL INTERFACE BETWEEN NOVACURA FLOW AND THE CUSTOMER’S UNDERLYING SYSTEMS “AS IS” AND AS AVAILABLE.

11. Limitation of liability

11.1 Novacura is not liable for loss of data except if the loss is caused by Novacura’s failure to make backup copies in accordance with the Service Description. Novacura is further not liable for the transfer of information via internet when the Customer uses the Service (including any security breach or loss or damage to data), unless caused by Novacura’s material breach of its obligations set out in the Service Description.

11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PRODUCTS AND SERVICES PROVIDED UNDER THESE GENERAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA FOR THE SERVICE PURSUANT TO THESE GENERAL TERMS IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE GENERAL TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

11.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.

12. Fees and payment terms

12.1 Any specific price agreement regarding the Service, and any payment plan for the payments to be made by the Customer, shall be agreed between the Parties. If no specific agreement regarding Novacura’s remuneration has been made between the Parties, the Customer shall pay the Service Fee to Novacura in accordance with Novacura’s at each time applicable price list.

12.2 Unless otherwise agreed, Novacura is entitled to adjust the Service Fee on an annual basis. If the increase exceeds the Swedish preliminary Labor Cost Index (LCI) for non-manual workers within industry J (“information and communication services”), Customer shall have the right to terminate the affected services with a thirty (30) days’ notice period. Novacura shall also have a right to adjust the Service Fee if there are significant changes in the expenditure for indispensable underlying components.

12.3 Invoices will be issued by Novacura annually in advance and shall be paid within thirty (30) days from date of issue. All prices are exclusive of, and the Customer is responsible for, all fees and taxes, including custom duties, importation fees, sales, use, withholding, gross revenue and like taxes, dues and charges assessed or incurred in connection with the provision of the Service under the Agreement. Novacura is entitled to add VAT or sales tax (as applicable under local law) on all invoices. Statutory interest rate will be charged from the due date in case of late payment.

12.4 Payment delayed more than sixty (60) days is considered a material breach of contract, which entitles Novacura to terminate the Agreement with immediate effect unless Customer pays the full amount due within ten (10) days of a written notice from Novacura.

12.5 The Customer shall compensate Novacura for travel and expenses, as well as other similar costs, incurred by Novacura in the performance of the Service. The compensation shall be equivalent to the actual cost for Novacura unless otherwise agreed between the Parties.

12.6 If circumstances within the Customer’s control causes Novacura additional work or additional costs, Novacura shall be entitled to compensation by the Customer. The compensation shall be calculated in accordance with Novacura’s at each time applicable price list.

13. Subcontractors

Novacura may at its own discretion use or engage subcontractors in relation to the Service. Novacura shall be responsible for the performance and acts of such subcontractors unless the subcontractor has been appointed by the Customer.

14. Infringement

14.1 Novacura will defend the Customer against any claim brought against the Customer by a third party alleging that the Service or Local Software (for the avoidance of doubt excluding any Third Party Products and Customer Applications) infringes such third party’s copyright, trademark, or makes unlawful use of such third party’s trade secret and will indemnify the Customer against any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Novacura, arising out of such claim. In the event the Customer has a suit or proceedings brought against it, the Customer shall: (i) notify Novacura without undue delay in writing of any claim, suit or proceeding; (ii) allow Novacura to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Novacura’s expense) to settle the claim or control the defense of any suit or proceeding. In the event that the Service or Local Software, or any part thereof, is held to constitute an infringement and/or its further use, distribution or other disposal is prohibited or restricted, Novacura shall, at its own expense and at its option, either: (i) procure the licenses necessary for the Customer to exercise the rights and licenses granted hereunder, (ii) replace the infringing Service or Local Software with non-infringing software or material of equivalent function and performance to the satisfaction of Customer, (iii) modify the Service or Local Software so that it becomes non-infringing, without materially detracting from function or performance, or (iv) terminate the Service and repay the fees prepaid for the Service with a reduction for the time-period during which the Customer has used the Service.

14.2 Customer will defend Novacura and its affiliates and partners against any claim either (a) brought against Novacura or its affiliates or partners by a third party alleging that (i) any Customer Data or Customer’s use of the Service, (ii) the Customer Software, Customer Application or a third party application provided by Customer, or (iii) the combination of a third party application provided by Customer and used with the Service, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Customer’s use of the Service or Local Software in an unlawful manner or in violation of the Agreement or any end user license agreement, and will indemnify Novacura and its affiliates from any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Customer, arising out of such claim. In the event Novacura has a suit or proceedings brought against it, Novacura shall: (i) notify the Customer without undue delay in writing of any claim, suit or proceeding; (ii) allow the Customer to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Customer’s expense) to settle the claim or control the defense of any suit or proceeding.

14.3 Novacura shall not be liable to the Customer for infringement claims based on the fact that the Service or Local Software has been modified, used, operated or combined by the Customer in a manner, to an extent or during a time period for which license was not granted.

14.4 The remedies set forth in this section 14 shall be the Customer’s exclusive remedy with regard to infringement claims.

15. Customer Data

14.1 The Customer and its Users may, depending on the Service, provide Customer Data to the Service and create and modify Customer Data within the Service. The Customer or its Users own all Customer Data. The Customer is responsible for any such Customer Data and the results created from it. The Customer may require Novacura to create and modify Customer Data within the scope of customization or development of applications governed by the Customer. Any such involvement by Novacura shall be clearly outlined in the instructions to Novacura’s consultants. Unless specifically agreed otherwise, Novacura has no access to Customer Data uploaded to the Service.

14.2 Unless otherwise agreed in the Service Description, the Customer is responsible for back up, on its own computer, equipment or other device, of any Customer Data that Customer store or access via the Service. Novacura does not guarantee or warrant that any Customer Data that Customer store or access via the Service will not be subject to inadvertent damage, corruption or loss.

14.3 As part of providing the Service to the Customer, Novacura may process Personal Data on behalf of the Customer. The Parties acknowledge that Customer is the data controller and Novacura is the data processor and the Parties shall comply with their respective obligations as set out in the Data Processing Agreement. The Data Processing Agreement is hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data.

14.4 After the termination of the Agreement or when reasonably requested by the Customer, Novacura shall return all Customer Data to the Customer in the available format and in accordance with Novacura’s defined routines. Novacura will charge for this in accordance with its at each time applicable price list. Novacura does not guarantee that the Customer Data could be accessed and used properly outside the Service.

16. Definitions

16.1 Unless the context clearly specifies or requires otherwise, the following terms and expressions used in these General Terms shall have the meanings assigned to them as defined below.

  • Acceptable Use Policy” means the policy describing certain prohibited uses of the Services offered by Novacura.
  • Agreement” means the Sales Order signed by the Parties, the Main Agreement and all appendices, including these General Terms.
  • Availability” means the availability of the Service at the Connection Point. Availability is a percentage measurement calculated using the following formula:
  • Availability = (Service Time – Downtime) / Service Time.
  • Base Applications” means the standard applications (based on existing workflows) offered by Novacura.
  • Connection Point” means the point at which Novacura connects the Service to an electronic communications network.
  • Customer” means the customer specified in the Agreement.
  • Customer Application” means any modification of a Base Application performed by the Customer or a third party.
  • Customer Data” means any data or other information (including personal data) that the Customer, or someone on behalf of the Customer, makes available to Novacura through the Service or that is created as a result of the Customer’s use of the Service.
  • Customer Software” means any software provided by the Customer and used in connection with the Software.
  • Customized Application” means an application based on workflows that are customized for the Customer. A Customized Application consist of a modification of a Base Application performed by or on behalf of Novacura AB.
  • Downtime” means the total period of time, within the agreed Service Time, during which the Service is not available to the Customer at the Connection Point, excluding any Permitted Downtime or Downtime for which Novacura is not responsible pursuant to section 1.
  • Local Software” means any software to be installed locally by the Customer pursuant to section 1.
  • Novacura” means the supplier specified in the Agreement.
  • Novacura AB” means the company Novacura AB with reg. no 556675-8156 and company address Björklundabacken 10, 436 57 HOVÅS, Sweden which is the owner of any and all intellectual property rights relating to the Service.
  • Novacura Flow” means the platform Novacura Flow, designed and developed by Novacura AB.
  • Parties” means Novacura and the Customer jointly.
  • Party” means Novacura or the Customer individually.
  • Permitted Downtime” means (a) Downtime caused by planned maintenance which Novacura has informed the Customer of in advance, (b) Downtime requested by the Customer or otherwise approved by the Customer, or (c) the time during which the Service is suspended in accordance with section 4.
  • Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly.
  • Sales Order” means a written document entered into by Customer and Novacura which specifies the Service to be provided to the Customer.
  • Service” means the cloud services (e.g. Novacura Flow, Base Applications and/or Customized Applications) described in Novacura’s Service Description that Novacura has agreed to make available to Customer over an electronic communications network pursuant to an applicable Sales Order, including any new versions or updates of such cloud services.
  • Service Commencement Date” means the date upon which Novacura shall make the Service available to the Customer, as set forth in the relevant Sales Order.
  • Service Description” means a description of Novacura’s products and services, available at https://www.novacura.com.
  • Service Fee” means the Service fees payable by the Customer for using the Service as specified in the Sales Order.
  • Service Time” means the time span during which the Service shall be available to the Customer at the Connection Point. The default Service Time is 24/7 and applies if no other Service Time is specified for a Service.
  • Subscription Term” means term during which Novacura shall provide the Service to the Customer, as set forth in the Sales Order.
  • Support Center” means Novacura’s online support center available at http://support.novacura.com as further described in the Service Description.
  • Third Party Products” means any software provided and/or distributed by Novacura to the Customer to which Novacura AB is not the owner.
  • User” means a person who is authorized to use the Service on behalf of the Customer or in accordance with an agreement with the Customer.

16.1 Other capitalized words and expressions not defined in these General Terms have the meaning ascribed to them in the Agreement.

#SoftwareLicense

General Terms for Subscription Software License

1. Background

These General Terms and Conditions for Subscription Software License (in this document; the “General Terms”) describes the Customer’s rights and the conditions upon which the Customer may use the Software and the Applications ordered by the Customer under a Sales Order.

2. Service Commencement Date

Upon the Service Commencement Date and during the Subscription Term, Novacura shall make the Software and the Applications available for download over an electronic communications network.

3. Licenses and Applications

3.1 License to the Software

Base Applications are standardized templates or applications provided by Novacura. Base Applications can consist of ready to use applications or of components that can be used as parts of a developed application. Some Base Applications may be provided as free templates without cost. If the Customer has purchased a Base Application from Novacura and subject to Customer’s continued compliance with these General Terms, the Sales Order and the payment of all applicable Fees, the Customer is for the duration of the Subscription Term granted a limited and non-exclusive license to use the Base Application, solely for the Customer’s internal business purposes, under the terms and conditions stated in these General Terms. Additional terms of use for the Base Applications may be agreed upon in connection with each purchase.

3.2 License to Base Applications

Base Applications are standardized templates or applications provided by Novacura. Base Applications can consist of ready to use applications or of components that can be used as parts of a developed application. Some Base Applications may be provided as free templates without cost. If the Customer has purchased a Base Application from Novacura and subject to Customer’s continued compliance with these General Terms, the Sales Order and the payment of all applicable Fees, the Customer is for the duration of the Subscription Term granted a limited and non-exclusive license to use the Base Application, solely for the Customer’s internal business purposes, under the terms and conditions stated in these General Terms. Additional terms of use for the Base Applications may be agreed upon in connection with each purchase.

3.3 License to Customized Applications

A Customized Application consists of a Base Application modified by or on behalf of Novacura AB. Any and all intellectual property rights to Customized Applications shall be held by Novacura AB (note that Customer has the opportunity to obtain intellectual property rights to its bespoke developed or adjusted applications as a Customer Application subject to the terms set out in Section 3.4 below). The fees payable for customization work will be agreed upon in the applicable Sales Order.

Subject to Customer’s continued compliance with these General Terms, the Sales Order and the payment of all applicable Fees, the Customer is for the duration of the Subscription Term granted a limited and non-exclusive license to use a Customized Application, solely for the Customer’s internal business purposes, under the terms and conditions stated in these General Terms. The Parties may agree additional terms of use for a Customized Application.

3.4 Customer Application

A Customer Application consists of either (i) an unlocked Base Application modified by or on behalf of the Customer, or (ii) an application independently developed by or on behalf of the Customer (not being based on a Base Application). In order to obtain the right to independently modify a Base Application, the Customer must first unlock the Base Application. The fee payable for unlocking the Base Application is set forth in Novacura’s at each time applicable price list, unless otherwise agreed in the Sales Order. Customer, or its contractor, will retain all intellectual property rights relating to the modifications and/or developments of the Customer Application. For the avoidance of doubt, any and all intellectual property rights to the unlocked Base Application shall remain with Novacura AB and Customer’s use of the Base Application as a base for its Customer Application is subject to these General Terms. Except as set forth in this Agreement, Customer may not copy, sell, resell, transfer, otherwise distribute, or grant any sublicenses or in any other way grant a right for a third party to use any Customer Application, which is based on a Base Application.

3.5 Third Party Products

Notwithstanding anything to the contrary in the Agreement, the Agreement does not apply in respect of Third Party Products. All third party licensors retain all right, title and interest in and to such Third Party Products. Unless otherwise agreed in writing, the Customer’s use of such Third Party Products is subject to the generally available third-party license terms applicable to the respective Third Party Product.

4. Development Services

Customer may subscribe to a fixed number of consultancy hours per month to be used for customization or development of applications (“Development Services”). The subscription shall be set forth in the Sales Order. The performance of Development Services shall be governed by the General Terms for Consultancy Services.

5. Maintenance

5.1 Novacura will for the duration of the Subscription Term provide Maintenance Services to the Customer in accordance with the Maintenance Terms.

5.2 During the Subscription Term Novacura may make changes and updates to the Software and Base Applications and improve the Software and Base Applications by implementing new feature releases. Customer will be either automatically upgraded or shall manually upgrade to new feature releases. Feature releases may be released up to one (1) time per month. Such new releases and/or updates will be included in the Fees.

5.3 Upgrades must be made to the latest available feature release. This applies also in case Customer has neglected to implement several feature releases. It is not possible to upgrade to an earlier feature release. Software which is not upgraded by the Customer may lose its existing functionalities and not work as specified in the Sales Order after twelve (12) months.

6. Customer obligations

6.1 The Customer shall provide Novacura with all necessary assistance required for the performance of Novacura’s undertakings under these General Terms.

6.2 The Customer shall continuously review documents, make necessary decisions and provide Novacura with all adequate information, which is necessary for Novacura to be able to fulfil its undertakings.

6.3 The Customer shall be responsible for the equipment used to operate the Software and Applications and shall furthermore be responsible for that it has the equipment, software and systems that are required to operate the Software and Applications. The Customer is consequently responsible for any faults and defects in the Customer Software.

6.4 The Customer shall be responsible to procure the necessary licenses and any other rights to Customer Software that is required to utilize the Software and Applications provided by Novacura.

6.5 The Customer warrants that it has the right to provide the Customer Data to Novacura and that the Customer Data does not infringe on any rights of a third party or makes unlawful use of a third party’s trade secrets.

6.6 The Customer acknowledges and agrees that Novacura and its affiliates and partners may have access to Customer Data and may need to use Customer Data for the purposes of fulfilling its obligations under the Agreement.

6.7 The Customer will be responsible for (a) Users’ compliance with this Agreement, the Acceptable Use Policy and any end user license agreement that may be enforced by Novacura from time to time, (b) the accuracy, quality and legality of Customer Data, (c) Customer’s use of Customer Data with the Software and Application, and (d) the interoperation of any Customer Application, Customer Software and/or a third party application provided by Customer which is used with the Software.

6.8 The Customer acknowledges that the Software, Applications and Third Party Products will transmit information about the Customer’s use of the Software, Application and Third Party Products to Novacura. The Customer approves the transmission of this information and is responsible for obtaining any necessary permits or approvals for the transmission.

7. Intellectual property rights

7.1 Any intellectual property rights, including all other rights to the Software, Base Applications, Customized Applications, underlying software and know-how to the Software, Base Applications, Customized Applications and documentation related thereto, are the sole property of Novacura AB or its licensors. Nothing in the Agreement shall be construed to transfer any ownership to the Customer. In case Customer enters into the Agreement with another supplier party than Novacura AB (i.e. a Novacura AB affiliate or partner), any license granted in these General Terms is a sub-license.

7.2 The Customer is only allowed to use the Software, Base Applications and Customized Applications for the Customer’s internal business purposes and shall, unless otherwise specifically agreed in the Sales Order, under no circumstances resell (standalone or bundled) the Software and Applications or use the Software and Applications for any other purposes.

7.3 Access to the Software, Base Applications and Customized Applications shall be granted only to the number of Users explicitly set forth in the Sales Order. The subscriptions provided under these General Terms can be a full User subscription or a limited subscription as set forth in the Sales Order. Examples of limited subscription forms are e.g. subscriptions restricted to named User’s right to operate only Novacura Flow Portal or specific workflows, or the right for the Customer’s Users to execute a maximum number of workflows per month. It is strictly forbidden for the Customer to breach the subscription terms set forth in the Sales Order, e.g. by allowing several Users to access the Software and Applications through a User account designated for a single User.

7.4 The Customer is not entitled to:

  • transfer, grant any sublicenses or in any other way grant a right for a third party to use the Software or Applications without the prior approval of Novacura. Notwithstanding the foregoing, the Customer may allow external contractors to use the Software, Base Applications and Customized Applications for the Customer’s internal purposes;
  • develop or make any amendments to the Software and Base Application (unless such modification right has been granted in accordance with sections 3- 3.4); or
  • decompile or reverse engineer the source code of the Software, Base Application or Customized Applications except to the extent expressly permitted by mandatory law.
  •  

8. Warranty

8.1 Novacura warrants that the Software, Base Applications and Customized Applications will during the Warranty Period materially operate in accordance with and conform to the specification. After the expiry of the Warranty Period, Novacura’s Maintenance Services are available to address Defects.

8.2 The warranty does not apply in case the Defect is caused by the fault or negligence of Customer or a third party, improper or unauthorized use, failure to correctly install the latest updates and corrections, use in an IT-environment not recommended by Novacura, modifications or repair which is not made by Novacura or its partners or affiliates, update in any third party used by the Customer, a force majeure event or other external factors such as power failure.

8.3 Following a written notice via Novacura’s Support Center of a Defect in the Software, Base Applications or Customized Applications, Novacura will (i) upon Customer’s request provide a temporary workaround as soon as reasonably possible, and (ii) provide a permanent remedy to the Defect within three (3) months from receipt of such written notice. If Novacura fails to comply with this section 8 the Customer is entitled to a refund of the Fees payable under the Agreement for the period during which the Defect has existed, or if the Defect has a material impact and is deemed impossible to remedy, terminate the Agreement within thirty (30) days.

8.4 This section 8 represent Novacura’s sole liability and Customer’s sole remedy for breach of warranty.

8.5 NOVACURA DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO QUALITY, MERCHANTABILITY, OPERABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NOVACURA PROVIDES ALL SOFTWARE, APPLICATIONS AND THE TECHNICAL INTERFACE BETWEEN NOVACURA FLOW AND THE CUSTOMER’S UNDERLYING SYSTEMS “AS IS” AND AS AVAILABLE.

9. Limitation of liability

9.1 Novacura is not liable for loss of data except if the loss is caused by Novacura’s failure to make backup copies in accordance with the Service Description. Novacura is further not liable for the transfer of information via internet when the Customer uses the Software and/or Application (including any security breach or loss or damage to data), unless caused by Novacura’s material breach of its obligations set out in the Service Description.

9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED UNDER THESE GENERAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA PURSUANT TO THESE GENERAL TERMS IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE GENERAL TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

9.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.

10. Fees and payment terms

10.1 Any specific price agreement regarding the Software, Applications and Maintenance Services, and any payment plan for the payments to be made by the Customer, shall be agreed between the Parties. If no specific agreement regarding Novacura’s remuneration has been made between the Parties, the Customer shall pay the Fees to Novacura in accordance with Novacura’s at each time applicable price list.

10.2 Unless otherwise agreed, Novacura is entitled to adjust the Fees on an annual basis. If the increase exceeds the Swedish preliminary Labor Cost Index (LCI) for non-manual workers within industry J (“information and communication services”), Customer shall have the right to terminate the Software and/or Applications with a thirty (30) days’ notice period. Novacura shall also have a right to adjust the Fees if there are significant changes in the expenditure for indispensable underlying components.

10.3 Invoices will be issued by Novacura annually in advance and shall be paid within thirty (30) days from date of issue. All prices are exclusive of, and the Customer is responsible for, all fees and taxes, including custom duties, importation fees, sales, use, withholding, gross revenue and like taxes, dues and charges assessed or incurred in connection with the provision of the Software, Applications, Third Party Products and Maintenance Services under the Agreement. Novacura is entitled to add VAT or sales tax (as applicable under local law) on all invoices. Statutory interest rate will be charged from the due date in case of late payment.

10.4 Payment delayed more than sixty (60) days is considered a material breach of contract, which entitles Novacura to terminate the Agreement with immediate effect unless Customer pays the full amount due within ten (10) days of a written notice from Novacura.

10.5 The Customer shall compensate Novacura for travel and expenses, as well as other similar costs, incurred by Novacura in the performance of the services. The compensation shall be equivalent to the actual cost for Novacura unless otherwise agreed between the Parties.

10.6 If circumstances within the Customer’s control causes Novacura additional work or additional costs, Novacura shall be entitled to compensation by the Customer. The compensation shall be calculated in accordance with Novacura’s at each time applicable price list.

11. Subcontractors

Novacura may at its own discretion use or engage subcontractors in relation to the Software, Base Applications and Customized Applications. Novacura shall be responsible for the performance and acts of such subcontractors unless the subcontractor has been appointed by the Customer.

12. Infringement

12.1 Novacura will defend the Customer against any claim brought against the Customer by a third party alleging that the Software or Applications infringes such third party’s copyright, trademark and trade secret and will indemnify the Customer against any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Novacura, arising out of such claim. In the event the Customer has a suit or proceedings brought against it, the Customer shall: (i) notify Novacura without undue delay in writing of any claim, suit or proceeding; (ii) allow Novacura to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Novacura’s expense) to settle the claim or control the defense of any suit or proceeding. In the event that the Software and/or Applications, or any part thereof, is held to constitute an infringement and/or its further use, distribution or other disposal is prohibited or restricted, Novacura shall, at its own expense and at its option, either: (i) procure the licenses necessary for the Customer to exercise the rights and licenses granted hereunder, (ii) replace the infringing Software and/or Applications with non-infringing software or material of equivalent function and performance to the satisfaction of Customer, (iii) modify the Software and/or Applications so that it becomes non-infringing, without materially detracting from function or performance, or (iv) terminate the license and repay the Fees prepaid for the applicable Software and/or Applications with a reduction for any reasonable use of the Software that the Customer may have had.

12.2 Customer will defend Novacura and its affiliates and partners against any claim either (a) brought against Novacura or its affiliates or partners by a third party alleging that (i) any Customer Data or Customer’s use of the Software or Applications, (ii) the Customer Software, Customer Application or a third party application provided by Customer, or (iii) the combination of a third party application provided by Customer and used with the Software or Applications, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Customer’s use of the Software or Applications in an unlawful manner or in violation of the Agreement, and will indemnify Novacura and its affiliates from any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Customer, arising out of such claim. In the event Novacura has a suit or proceedings brought against it, Novacura shall: (i) notify the Customer without undue delay in writing of any claim, suit or proceeding; (ii) allow the Customer to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Customer’s expense) to settle the claim or control the defense of any suit or proceeding.

12.3 Novacura shall not be liable to the Customer for infringement claims based on the fact that the Software or Applications have been modified, used, operated or combined by the Customer in a manner, to an extent or during a time period for which license was not granted.

12.4 Novacura shall have no obligation to defend nor indemnify the Customer against any claim pertaining to the use of any Software and/or Application release older than twelve (12) months. Novacura shall have no obligation to defend nor indemnify the Customer against any claim pertaining to the use of any other release of the Software and/or Application than the most recent one, if the infringement may have been avoided by the use of the most recent release.

12.5 The remedies set forth in this section 12 shall be the Customer’s exclusive remedy with regard to infringement claims.

13. Customer Data

13.1 The Customer and its Users may, depending on the service, provide Customer Data to Novacura as well as create and modify Customer Data within the products and services provided. The Customer or its Users own all Customer Data. The Customer is responsible for any such Customer Data and the results created from it. The Customer may require Novacura to create and modify Customer Data within the scope of customization or development of Applications. Any such involvement by Novacura shall be clearly outlined in the instructions to Novacura’s consultants. Unless specifically agreed otherwise, Novacura has no access to Customer Data.

13.2 Unless otherwise agreed in the Service Description, the Customer is responsible for back up, on its own computer, equipment or other device, of any Customer Data that Customer store or access via the use of the Software and Applications. Novacura does not guarantee or warrant that any Customer Data that Customer store or access via the use of the Software and Applications will not be subject to inadvertent damage, corruption or loss.

13.3 As part of providing services to the Customer, Novacura may process Personal Data on behalf of the Customer. The Parties acknowledge that Customer is the data controller and Novacura is the data processor and the Parties shall comply with their respective obligations as set out in the Data Processing Agreement. The Data Processing Agreement is hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data.

13.4 After the termination of the Agreement or when reasonably requested by the Customer, Novacura shall return all Customer Data to the Customer in the available format and in accordance with Novacura’s defined routines. Novacura will charge for this in accordance with its at each time applicable price list. Novacura does not guarantee that the Customer Data could be accessed and used properly without making use of the Software and Applications.

14. Definitions

14.1 Unless the context clearly specifies or requires otherwise, the following terms and expressions used in these General Terms shall have the meanings assigned to them as defined below.

Acceptable Use Policy” means the policy describing certain prohibited uses of the Software and Application offered by Novacura.

Agreement” means the Sales Order signed by the Parties, the Main Agreement and all appendices and annexes, including these General Terms.

Applications” means the Base Applications and Customized Applications.

Base Applications” means the standard applications (based on existing workflows) offered by Novacura.

Customer” means the customer specified in the Agreement.

Customer Application” means an application consisting of a modification of a Base Application subject to the conditions set out in section 3.4.

Customer Data” means any data or other information (including personal data) that the Customer, or someone on behalf of the Customer, makes available to Novacura under the Agreement or that is created as a result of the Customer’s use of the Software and Applications.

Customer Software” means any software provided by the Customer and used in connection with the Software.

Customized Application” means an application based on workflows that are customized for the Customer. A Customized Application consist of a modification of a Base Application performed by or on behalf of Novacura AB.

Defect” means a material deviation from the specification describing the features and functionality of Software, Base Applications or Customized Applications.

Fee(s)” means the fees for licensing the Software, Applications, Maintenance Services and Third Party Products as specified in the Sales Order.

Maintenance Services” means the maintenance services provided by Novacura pursuant to the applicable version of Novacura’s General Terms for Software Maintenance.

Maintenance Terms” means the applicable version of Novacura’s General Terms for Software Maintenance.

Novacura” means the supplier specified in the Agreement.

Novacura AB” means the company Novacura AB with reg. no 556675-8156 and company address Björklundabacken 10, 436 57 HOVÅS, Sweden which is the owner of any and all intellectual property rights relating to the Software and Applications.

Novacura Flow” means the platform Novacura Flow, designed and developed by Novacura AB. Novacura Flow is provided with various functionalities, such as Novacura Flow Server, Novacura Flow Designer, Novacura Flow Runtime, Novacura Flow Admin and Novacura Flow Portal.

Parties” means Novacura and the Customer jointly.

Party” means Novacura or the Customer individually.

Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly.

Sales Order” means a written document entered into by Customer and Novacura which specifies the Software and Applications to be provided to the Customer.

Service Commencement Date” means the service commencement date set out in in the Sales Order.

Service Description” means a description of Novacura’s products and services, available at https://www.novacura.com.

Software” means (i) Novacura Flow, including any new release or updates thereof, and (ii) local software and technical interfaces, created by or behalf of Novacura AB, which integrate Novacura Flow with the Customer’s systems.

Subscription Term” means the term of the Agreement as set out in the Sales Order, including any renewals term.

Support Center” means Novacura’s online support center available at http://support.novacura.com as further described in the Service Description.

Third Party Products” means any software provided and/or distributed by Novacura to the Customer to which Novacura AB is not the owner.

User” means a person who is authorized to use the Software on behalf of the Customer or in accordance with an agreement with the Customer.

Warranty Period” means a period of ninety (90) days from the start of the Subscription Term or the Customer’s initial use of the Software, whichever is the earliest.

14.2 Other capitalized words and expressions not defined in these General Terms have the meaning ascribed to them in the Agreement.

________________

#SoftwareMaintenance

General Terms for Software support & Maintenance

1. Background

These General Terms for Software Support & Maintenance (in this document; the “General Terms”) describes the Customer’s rights to and the conditions for Novacura’s Maintenance Services ordered by the Customer under a Sales Order.

2. New Feature Releases and Service Packs

2.1 As part of Maintenance, the Customer will be either automatically upgraded or shall manually upgrade to new feature releases of the Software. Feature releases may be released up to one (1) time per month. In addition to feature releases, Novacura may make service packs available as required to make corrections (e.g. bug fixes) and amendments to existing Software.

2.2 Upgrades must be made to the latest available feature release. This applies also in case Customer has neglected to implement several feature releases. It is not possible to upgrade to an earlier feature release. Software which is not upgraded by the Customer may lose its existing functionalities and not work as specified in the Sales Order after twelve (12) months.

2.3 All feature releases and all services packs made available to the Customer under these General Terms shall be considered Software and be subject to Novacura’s General Terms for License.

3. Maintenance of the Software, Base Applications and Customized Applications

3.1 Novacura undertakes to provide Maintenance in accordance with a valid Sales Order for i) the latest feature release of the Software, and ii) Base Applications and Customized Applications.

3.2 Novacura will have limited possibilities to offer support for Software feature releases which are older than the latest feature release of the Software. Any such support will be separately agreed between the Parties as support or consultancy services.

3.3 Maintenance requests shall be made to the Support Center at http://support.novacura.com.

3.4 Novacura’s Maintenance undertaking include:

  • in the event of a Blocker Defect: To correct the Blocker Defect as quickly as possible, but in any event, provided that the Customer’s systems and technical environment allows Novacura to provide correction, within forty-eight (48) hours from Novacura’s receipt of the Customer’s notice submitted via Novacura’s Support Center. If Novacura is unable to correct a Blocker Defect within this time frame, Novacura will credit the Customer an amount equal to 1/365 of the annual Maintenance Fee for each day the Blocker Defect is not corrected;
  • in the event of a Defect in the Software that insignificantly affects the Customer’s use of the Software: To correct such Defect when providing new releases of the Software; and
  • in the event of all other Defects: To provide reasonable efforts to correct such Defects as soon as the circumstances require.

4. Maintenance Limitations

4.1 Novacura’s Maintenance undertaking set forth in these General Terms does not cover an obligation to remedy Defects caused by (i) the Customer’s use of the Software or Applications in violation of the applicable license terms or recommendations from Novacura, (ii) virus or other external attacks, or (iii) an upgrade of a third party software.

4.2 Unless otherwise agreed the Customer shall be responsible for installation of service packs, corrections or new feature releases of the Software, Base Applications or Customized Applications. Such assistance may be agreed as support or consultancy services.

4.3 Unless otherwise agreed Novacura’s undertakings do not cover restoration of data. Such assistance may be agreed as support or consultancy services.

4.4 Novacura is entitled to compensation on a time and materials basis in accordance with its applicable price list for any time spent in order to correct a Defect caused due to circumstances stated under this section 4.

5. Responsibilities of the Customer

5.1 The Customer shall procure that its systems and technical environment allows Novacura to perform Maintenance by remote control.

5.2 To the extent the Software needs new releases of software from third parties, or upgraded hardware, in order to function as intended, the Customer is responsible for making sure that such extra resources are available (excluding any software embedded in the Software, for which Novacura is responsible).

5.3 Novacura is entitled to compensation on a time and materials basis in accordance with it’s at the time applicable pricelist for any extra time that Novacura may have to perform if the Customer fails to meet any of its undertaking listed in this section 5.

6. Fees and payment terms

6.1 Maintenance Fee for perpetual licenses

If the Customer has purchased a perpetual license to the Software, the Customer shall pay an annual Maintenance Fee equal to twenty (20) % of the accumulated License Fee (as defined in Novacura’s General Terms for Perpetual Software License) relating to the Software.

If the Customer has purchased a perpetual license to Base Applications, the Customer shall pay an annual Maintenance Fee equal to twenty (20) % of the accumulated fee payable for the licenses to all Base Applications.

6.2 The Maintenance Fee shall be established in advance during the fourth quarter each year.

6.3 If Novacura’s Maintenance undertaking starts during a running calendar year, the Maintenance Fee to be paid by the Customer for that calendar year, shall be set down proportionally with regard to that the annual Maintenance Fee is based on a full calendar year (example: if Novacura’s Maintenance undertaking starts on 1 July, the Maintenance Fee for that period shall be fifty (50) % of the annual Maintenance Fee). The Customer shall pay such initial Maintenance Fee in advance.

6.4 To the extent the number of users or other license conditions that have an increasing impact on the Maintenance Fee is changing during a calendar year Novacura is entitled to modify the Maintenance Fee proportionally to reflect such increased impact and immediately invoice the difference between the Maintenance Fee already paid by the Customer and the increased Maintenance Fee.

6.5 Unless otherwise agreed, Novacura is entitled to adjust the Maintenance Fee on an annual basis. If the increase exceeds the Swedish preliminary Labor Cost Index (LCI) for non-manual workers within industry J (“information and communication services”), Customer shall have the right to terminate the Maintenance with a thirty (30) days’ notice period.

6.6 Maintenance Fee for subscription licenses

If the Customer has purchased a subscription license to the Software subject to Novacura’s General Terms for Subscription Software License, the Maintenance Fee is included in the Fee (as defined in Novacura’s General Terms for Subscription Software License).

If the Customer has been granted a subscription license to a Base Application subject to Novacura’s General Terms for Software Subscription License, the Maintenance Fee is included in the Fee (as defined in Novacura’s General Terms for Software Subscription License).

6.7 Maintenance Fee for Customized Applications

The Parties shall in an applicable Sales Order agree upon the Maintenance Fee for Maintenance of Customized Applications.

6.8 Payment terms

Novacura will invoice the Maintenance Fee for the upcoming calendar year in advance during the fourth quarter each year. Invoices issued by Novacura shall be paid within thirty (30) days from date of issue. Novacura is entitled to add VAT or sales tax (as applicable under local law) on all invoices. Statutory interest rate will be charged from the due date in case of late payment. Where applicable, if the Customer is based or operating in the United States, the Customer is responsible to self-assess any applicable use tax.

6.9 Delayed payment

Payment delayed more than sixty (60) days is considered a material breach of contract, which entitles Novacura to terminate the Agreement with immediate effect unless Customer pays the full amount due within ten (10) days of a written notice from Novacura.

7. Limitation of liability

7.1 NOVACURA DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THESE GENERAL TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO QUALITY, MERCHANTABILITY, OPERABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

7.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED UNDER THESE GENERAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA FOR MAINTENANCE PURSUANT TO THESE GENERAL TERMS IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE GENERAL TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.

8. Subcontractors

Novacura may at its own discretion use or engage subcontractors to perform Maintenance. Novacura shall be responsible for the performance and acts of such subcontractors unless the subcontractor has been appointed by the Customer.

9. Definitions

9.1 Unless the context clearly specifies or requires otherwise, the following terms and expressions used in these General Terms shall have the meanings assigned to them as defined below.

Blocker Defect” means any defect making the Software unavailable or otherwise preventing the Customer to use the Software. For the avoidance of doubt, Defects caused by an update in any third party software used by the Customer (including updates in Customer’s ERP-system making it incompatible with the current release of the Software) shall not be considered “Blocker Defects”.

Defect” means a material deviation from the specification describing the features and functionality of the Software, Base Application or Customized Application.

Maintenance” means any services to be performed by Novacura under these General Terms.

Maintenance Fee” means the fees for the Maintenance set forth in section 6 (as applicable).

Support Center” means Novacura’s online support center available at http://support.novacura.com as further described in the Service Description.

9.2 Other capitalized words and expressions not defined in these General Terms have the meaning ascribed to them in the Agreement.

#Marketplace

General Terms for Marketplace

1. Background

These General Terms and Conditions for the Novacura Marketplace (in this document; the “General Terms”) describes the Customer’s rights and the conditions upon which the Customer may use the Novacura Marketplace and Applications as ordered by the Customer under a Sales Order.

2. Service Commencement Date

Upon the Service Commencement Date and during the Subscription Term, Novacura shall make the Novacura Marketplace and Applications available to the Customer from the Connection Point in accordance with the Sales Order.

3. The Novacura Marketplace Offering

3.1 The Customer may access Novacura’s current offering on the Novacura Marketplace, which may include from time to time the possibility to purchase, freely download and/or subscribe to Applications and components in accordance with these General Terms.

3.2 The Novacura Marketplace and the Applications are provided on an “as is”-basis, without any warranty, either expressed or implied, regarding reliability, accuracy or completeness.

3.3 Base Applications

Novacura offers the Customer the possibility to download Base Applications provided by Novacura or Novacura Labs. Some Base Applications require subscription and some will be provided for free without cost. Base Applications can consist of ready to use applications or components that can be used as parts of a developed application.

3.4 Customized Applications

A Customized Application consists of a Base Application modified by Novacura or by Novacura partners. For Customized Applications offered by Novacura partners, the Customer will be linked to a form enabling Novacura or Novacura partner to contact the Customer in order to download the Customized Applications. For the avoidance of doubt, the Customized Applications will be quoted and delivered by Novacura or Novacura partner and may be subject to the applicable terms and conditions of such Novacura partner (if applicable) in addition to these General Terms.

3.5 Customer Application

A Customer Application consists of an unlocked Base Application modified by or on behalf of the Customer. In order to obtain the right to independently modify a Base Application, the Customer must first unlock the Base Application as agreed in the Sales Order.

Customer Applications do not become part of the Novacura Marketplace (whether modified or developed by Novacura, Customer or a third party). Customer, or its contractor, will retain all intellectual property rights relating to the modifications and/or developments of the Customer Application. For the avoidance of doubt, any and all intellectual property rights to the unlocked Base Application shall remain with Novacura AB and Customer’s use of the Base Application as a base for its Customer Application is subject to these General Terms. Customer may not copy, sell, resell, transfer, otherwise distribute, or grant any sublicenses or in any other way grant a right for a third party to use any Customer Application, which is based on a Base Application.

4. Downloading Applications and Payment Terms

4.1 The Customer must enter the Agreement regarding a subscription for access to the Novacura Marketplace and Applications. After entering into a Sales Order, the Customer will be provided with an account which enables the Customer and its Users to access the agreed content.

4.2 In order to download any Applications on the Novacura Marketplace, the User must (i) be logged in to the Novacura Marketplace, and (ii) comply with these General Terms in their entirety.

4.3 Some of the Base Applications may be available on the Novacura Marketplace for free and not require a subscription fee (but does for the avoidance of doubt still require log in).

4.4 For the Base Applications, the Subscription Term is twelve (12) months. During the Subscription Term, the Customer may access and download any of the Base Applications as available in the Novacura Marketplace (Customer may however be limited to the free Base Applications if the Sales Order is limited to such). Unless a subscription is terminated three (3) months before the expiry of the Subscription Term, the subscription will automatically be renewed for another twelve (12) months starting from the end of the previous Subscription Term subject to Novacura’s updated price list. To end the subscription, the Customer should contact Novacura Sales.

4.5 For Novacura Customized Applications, the fees payable for customization work will be agreed upon in the applicable Sales Order.

4.6 Any applicable sales tax, value added tax and other taxes, fees, and charges shall be charged in addition to Novacura’s stated fees/prices. Novacura is entitled to, in its own discretion, continuously revise the prices and pricing model.

4.7 Payment shall be made against invoice, within thirty (30) days from the date of the invoice. Any complaints regarding an invoice shall be submitted in writing not later than ten (10) days from the Customer’s receipt of the invoice. If payment is not made when due, Novacura is entitled to charge a fifteen percent (15%) annual penalty interest after the due date.

5. Local Software

5.1 In order for the Novacura Marketplace and Applications to work properly, the Customer may need to update or install Local Software provided by Novacura. Novacura may, but has no obligation to, include a description and technical information for the Applications.

5.2 Notwithstanding anything to the contrary in the Agreement, the Agreement does not apply in respect of Local Software that constitutes Third Party Products. All third party licensors retain all right, title and interest in and to such Third Party Products. Unless otherwise agreed in writing, the Customer’s use of such Third Party Products is subject to the generally available third-party license terms applicable to the respective Third Party Product.

6. Maintenance and support

Downloaded Applications are provided as-is and the subscription/price does not include any support or maintenance. The Customer may request support or maintenance in a separate support agreement, subject to additional fees.

7. Permitted use

The Customer may download Applications on the Novacura Marketplace for use in the Customer’s own installation of Novacura Flow Studio. The Customer is entitled to use and modify the Applications as well as use the Applications as a basis for further development in accordance with the provisions set forth in these General Terms, the Acceptable Use Policy and solely for use within Novacura Flow Studio.

8. Customer obligations

8.1 The Customer shall provide Novacura with all necessary access and assistance required for the performance of Novacura’s undertakings under these General Terms.

8.2 The Customer shall continuously review documents, make necessary decisions and provide Novacura with all adequate information, which is necessary for Novacura to be able to fulfil its undertakings.

8.3 The Customer shall be responsible for the equipment used to access the Novacura Marketplace and Applications as well as the communication between the Customer and the Connection Point. The Customer shall furthermore be responsible for that it has the equipment, software and systems that are required for the performance of the Novacura Marketplace and Applications and/or that the Customer Software if necessary can communicate and work together with the Novacura Marketplace and Applications. The Customer is consequently responsible for any faults and non-conformities in the Customer Software.

8.4 The Customer shall be responsible to procure the necessary licenses and any other rights to Customer Software that is required to utilize the Novacura Marketplace and Applications provided by Novacura.

8.5 The Customer shall ensure that (a) any Customer Software and/or Customer Data is free of viruses, Trojan horses, worms or other harmful software or code, (b) any Customer Software is in the agreed format, and (c) any Customer Software cannot, in any way, harm or adversely affect Novacura’s systems or the Novacura Marketplace and Applications.

8.6 The Customer shall ensure that log-in information, security procedures and other information to which Customer and/or the User have access in order to use the Novacura Marketplace and Applications, is treated confidentially in accordance with the confidentiality obligations set forth in the Agreement. The Customer shall immediately inform Novacura in the event of any security breaches (or attempts thereof) or unauthorized person having obtained knowledge of information pursuant to this clause 8.6.

8.7 The Customer warrants that it has the lawful right to use and upload the Customer Data to the Novacura Marketplace and Applications and that the Customer Data (a) do not infringe, misappropriate or otherwise violate any rights, intellectual property or other proprietary rights or violates any privacy rights of any third party or makes unlawful use of a third party’s trade secrets, (b) is not false or misleading, (c) is not defamatory, obscene or offensive, and (d) does not violate any applicable law or regulation.

8.8 The Customer acknowledges that Novacura Flow Studio, Novacura Marketplace and the Applications will transmit information about the Customer’s use thereof to Novacura. The Customer approves the transmission of this information and is responsible for obtaining any necessary permits or approvals for the transmission.

8.9 The Customer acknowledges and agrees that Novacura and its affiliates and partners may have access to Customer Data and may need to use Customer Data for the purposes of fulfilling its obligations under the Agreement.

8.10 The Customer will be responsible for (a) Users’ compliance with the Agreement, these General Terms, the Acceptable Use Policy and any end user license agreement that may be enforced by Novacura from time to time, (b) the accuracy, appropriateness, completeness, quality and legality of Customer Data, (c) Customer’s use of Customer Data with the Novacura Marketplace and Applications, and (d) the interoperation of any Customer Application or a third party application provided by Customer which is used with the Novacura Marketplace and Applications.

9. Intellectual Property Rights

9.1 Any intellectual property rights, including all other rights to the Novacura Marketplace and Applications (including but not limited to Novacura Flow Studio, Novacura Marketplace and Applications, underlying software and know-how, Local Software, and documentation related thereto, are the sole property of Novacura AB, its affiliates, licensors or partners. Nothing in the Agreement shall be construed to transfer any ownership to the Customer. In case Customer enters into the Agreement with another supplier party than Novacura AB (i.e. a Novacura AB affiliate or partner), any licenses granted in these General Terms is a sub-license.

9.2 The Applications are made available for downloading solely for the Customer’s internal business purposes, for use in the Novacura Flow Studio and in accordance with these General Terms. Unless otherwise agreed in the Sales Order, to the extent permitted by mandatory law, the Customer agrees that it will not sell, lease, lend, convey or transmit the Applications to any third party or use outside the Novacura Flow Studio.

9.3 Subject to the Customer’s compliance with these General Terms, the Customer is entitled to use, edit, download, print, display, modify and create derivative works based on Base Applications, for the sole purpose of developing Customized or Customer Applications, which the Customer has downloaded in accordance with section 4 solely for the Customer and its affiliate’s business purpose and within the Novacura Flow Studio.

9.4 Access to the Novacura Marketplace and Applications shall be granted through electronic means by Novacura, only for the number of Users and limited to the permitted uses as granted in the Sales Order. It is strictly forbidden for the Customer to breach the subscription terms set forth in the Agreement, e.g. by allowing several Users to access the Novacura Marketplace and Applications through a User account designated for a single User.

9.5 Unless expressly permitted by these General Terms (see permitted amendments to Applications in Section 1), Customer is not entitled to:

  • transfer, grant any sublicenses or in any other way grant a right for a third party to use the Novacura Marketplace and Applications or Local Software without the prior approval of Novacura;
  • develop or make any amendments to the Novacura Marketplace and Applications or Local Software; or
  • decompile or reverse engineer the source code of the Novacura Marketplace and Applications or Local Software except to the extent expressly permitted by mandatory law.

10. Security Audits

Novacura is entitled to inspect and monitor relevant aspects of the business of the Customer in order to verify the due and proper fulfilment of the obligations set out in the General Terms. The Customer shall make available to Novacura all information necessary to demonstrate compliance with the obligations in the General Terms.

11. Warranty

NO WARRANTIES. NOVACURA, AND OUR AFFILIATES, SUPPLIERS, RE-SELLERS, DISTRIBUTORS, PARTNERS AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO THE CUSTOMER’S USE OF THE NOVACURA MARKETPLACE, APPLICATIONS OR LOCAL SOFTWARE. THE CUSTOMER UNDERSTANDS THAT USE OF THE NOVACURA MARKETPLACE, APPLICATIONS OR LOCAL SOFTWARE IS AT THE CUSTOMER’S OWN RISK AND THAT NOVACURA PROVIDES THE NOVACURA MARKETPLACE, APPLICATIONS AND LOCAL SOFTWARE ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” NOVACURA DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE NOVACURA MARKETPLACE, APPLICATIONS OR LOCAL SOFTWARE. NOVACURA RESERVES THE RIGHT TO REMOVE ANY APPLICACTION WHETHER DOWNLOADED BY THE CUSTOMER OR NOT, FROM THE NOVACURA MARKETPLACE AT ANY TIME IN ITS SOLE DISCRETION. TO THE EXTENT PERMITTED UNDER THE CUSTOMER’S LOCAL LAW, NOVACURA EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT.

12. Customer Indemnity

Customer agrees to indemnify, defend and hold harmless Novacura, its affiliates, and partners from and against any and all losses incurred arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise by a third party that arise from or relate to: (a) Customer Data; (b) Customer’s breach of any of its obligations, representations, warranties or covenants under this Agreement; (c) unauthorized use of the Novacura Marketplace; (d) Custom or its Users’ gross negligence or willful misconduct or fraud; or (e) Customer’s use of Novacura Marketplace, including in combination with any third party software, application or service. Customer will fully cooperate with Novacura, its affiliates and partners in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Novacura.

13. Limitation of Liability

13.1 NOVACURA IS UNDER NO CIRCUMSTANCES RESPONSIBLE FOR THE CUSTOMER’S LOSS OF PROFITS, LOSS OF EARNINGS OR GOODWILL, LOSS DUE TO DISRUPTION OR DOWN-TIME, LOSS OF DATA, OR THE CUSTOMER’S LIABILITY TOWARDS ANY THIRD PARTY, OR INDIRECT OR CONSEQUENTIAL DAMAGE OF ANY KIND WHATSOEVER. NOVACURA IS FURTHER NOT LIABLE FOR THE TRANSFER OF INFORMATION VIA INTERNET WHEN THE CUSTOMER USES THE NOVACURA MARKETPLACE OR APPLICATIONS (INCLUDING ANY SECURITY BREACH OR LOSS OR DAMAGE TO DATA), UNLESS CAUSED BY NOVACURA’S MATERIAL BREACH OF ITS OBLIGATIONS SET OUT IN THE SERVICE DESCRIPTION.

13.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED UNDER THESE GENERAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA (IF ANY) PURSUANT TO THESE GENERAL TERMS IN THE SIX (6) MONTHS PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THESE GENERAL TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

13.3 NOVACURA’S OBLIGATION TO INDEMNIFY AND DEFEND THE CUSTOMER SET OUT IN CLAUSE 1 BELOW CONSTITUTES THE SOLE AND EXCLUSIVE REMEDY IN RELATION TO ANY INFRINGEMENT CLAIM AND NOVACURA SHALL HAVE NO LIABILITY WHATSOEVER IN ADDITION TO THE OBLIGATIONS IN CLAUSE 15.1.

14. Subcontractors

14.1 Novacura may at its own discretion use or engage subcontractors in relation to the Novacura Marketplace and Applications. Novacura shall be responsible for the performance and acts of such subcontractors unless the subcontractor has been appointed by the Customer.

14.2 The Customer may at its own discretion use or engage external contractors to use the Novacura Marketplace and Applications and Local Software for the Customer’s internal purposes and subject to the Agreement and these General Terms (including but not limited to section 9 concerning Intellectual Property Rights). The Customer shall be fully responsible for the performance and acts of such external contractors.

15. Infringement

15.1 Novacura will defend the Customer against any claim brought against the Customer by a third party alleging that the Novacura Marketplace, Applications or Local Software (for the avoidance of doubt excluding any Third Party Products and Customer Applications or any Customized Applications provided by a Novacura partner) infringes such third party’s copyright, trademark, or makes unlawful use of such third party’s trade secret and will indemnify the Customer against any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Novacura, arising out of such claim. In the event the Customer has a suit or proceedings brought against it, the Customer shall: (i) notify Novacura without undue delay in writing of any claim, suit or proceeding; (ii) allow Novacura to settle the claim and/or control the defense of any suit or proceedings; (iii) provide reasonable assistance to settle the claim or control the defense of any suit or proceeding and (iv) cease all use of the Novacura Marketplace, Applications or Local Software until the claim, suit or proceeding has been finally settled. In the event that the Novacura Marketplace and Applications or Local Software, or any part thereof, is held to constitute an infringement and/or its further use, distribution or other disposal is prohibited or restricted, Novacura will, at its own expense and at its option, either: (i) procure the licenses necessary for the Customer to exercise the rights and licenses granted hereunder, (ii) replace the infringing Novacura Marketplace and Applications or Local Software with non-infringing software or material, (iii) modify the Novacura Marketplace and Applications or Local Software so that it becomes non-infringing, or (iv) instruct the Customer to permanently cease all use of, and delete, the Novacura Marketplace and Applications or Local Software.

15.2 Customer will defend Novacura and its affiliates and partners against any claim either (a) brought against Novacura or its affiliates or partners by a third party alleging (i) that any Customer Data or Customer’s use of the Novacura Marketplace and Applications, (ii) Customer Software, Customer Application or a third party application provided by Customer, or (iii) the combination of a third party application provided by Customer and used with the Novacura Marketplace and Applications, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Customer’s use of the Novacura Marketplace and Applications or Local Software in an unlawful manner or in violation of the Agreement or any end user license agreement, and will indemnify Novacura and its affiliates from any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Customer, arising out of such claim. In the event Novacura has a suit or proceedings brought against it, Novacura shall: (i) notify the Customer without undue delay in writing of any claim, suit or proceeding; (ii) allow the Customer to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Customer’s expense) to settle the claim or control the defense of any suit or proceeding.

15.3 Novacura shall not be liable to the Customer for infringement claims based on the fact that the Novacura Marketplace and Applications or Local Software has been modified, used, operated or combined by the Customer in a manner, to an extent or during a time period for which license was not granted.

15.4 The remedies set forth in this section 15 shall be the Customer’s exclusive remedy with regard to infringement claims.

16. Termination

16.1 Upon termination of the Agreement, termination of the Subscription Term in accordance with section 4 or, at Novacura’s discretion, suspension, all rights and licenses granted to the Customer by Novacura will cease, including the Customer’s right to access the Novacura Marketplace and the Applications (including downloaded Applications), and the Customer agrees to permanently delete the Applications and any and all Confidential Information (as defined in the Agreement) that is in the Customer’s possession or control. At Novacura’s request, the Customer agrees to provide certification of such destruction to Novacura. Notwithstanding the foregoing, Novacura reserves the right to extract such information concerning deletion without notice and/or manually delete such Applications. No refund or partial refund of any fees paid hereunder or any other fees will be made for any reason. Following termination, sections 9 and 17 of these General Terms shall continue to be effective.

16.2 Notwithstanding the foregoing section 1, in the event the Customer has had a Subscription Term of at least thirty-six (36) consecutive months, the Customer is not obliged to permanently delete the Applications, and may keep the Applications and additional configurations performed to the Applications for indefinite time. For the avoidance of doubt, nothing in this section 16.2 shall be construed to transfer any ownership to the Customer and the rights granted in this section 16.2 does not apply in the event of the Customer’s breach of these General Terms or the Agreement (including but not limited to section 9 concerning Intellectual Property Rights).

17. Customer Data

17.1 The Customer and its Users may, depending on the Novacura Marketplace and Applications, provide Customer Data to the Novacura Marketplace and Applications and create and modify Customer Data within the Applications and/or Novacura Marketplace. The Customer or its Users own all Customer Data. The Customer is responsible for any such Customer Data and the results created from it. Novacura, its affiliates and partners may use Customer Data to the extent necessary to provide Novacura Marketplace and the Applications. For example, the Customer may require Novacura to create and modify Customer Data within the scope of customization or development of applications governed by the Customer. Unless to the extent necessary to provide the Applications or Novacura Marketplace, or as specifically agreed otherwise, Novacura, its affiliates and partners, have no access to Customer Data uploaded to the Applications and/or Novacura Marketplace.

17.2 Unless otherwise agreed in the Sales Order, the Customer is responsible for back up, on its own computer or other device, of any the Customer Data that the Customer store or access via the Applications and/or Novacura Marketplace. Novacura does not guarantee or warrant that any Customer Data that the Customer store or access via the Applications and/or Novacura Marketplace will not be subject to inadvertent damage, corruption or loss.

17.3 Each Party is responsible for its compliance with all applicable data protection laws. As part of providing the Applications to the Customer, Novacura may process personal data, e.g. relating to the Customer’s employees and consultants in relation to user administration, (“Personal Data”). Novacura may process Personal Data for purposes necessary for managing the Novacura Marketplace and in relation to the Applications.

17.4 After the termination of the Agreement or when reasonably requested by the Customer, Novacura shall return all Customer Data to the Customer in the available format and in accordance with Novacura’s defined routines. Novacura will charge for this in accordance with its at each time applicable price list. Novacura does not guarantee that the Customer Data could be accessed and used properly outside the Novacura Marketplace and/or Applications.

17.5 Novacura may collect anonymous usage data information about the use of the Applications. This anonymous usage data information is the sole property of Novacura, which may use this information for its own purposes (including, but not limited to, to perform, further develop and improve the Applications).

18. Definitions

Unless the context clearly specifies or requires otherwise, the following terms and expressions used in these General Terms shall have the meanings assigned to them as defined below.

“Agreement” means the Sales Order signed by the Parties, the Main Agreement and all appendices, including these General Terms.

“Application(s)” shall mean the applications and components in the Base Applications, Customized Applications and/or the Customer Applications available on Novacura Marketplace for use in Novacura Flow Studio.

Base Applications” means the standard applications (based on existing workflows) offered by Novacura.

“Service Commencement Date” means the date upon which Novacura shall make the Novacura Marketplace and Applications available to the Customer, as set forth in the relevant Sales Order.

“Connection Point” means the point at which Novacura connects the Novacura Marketplace and Applications to an electronic communications network.

“Customer” means the customer specified in the Agreement.

Customer Application” means any modification of a Base Application performed by the Customer or other third party.

“Customer Data” means any data or other information (including personal data) that the Customer, or someone on behalf of the Customer, makes available to Novacura through the Novacura Marketplace and Applications or that is created as a result of the Customer’s use of the Novacura Marketplace and Applications. 

“Customer Software” means any software provided by the Customer and used in connection with the Applications.

Customized Application” means an application based on workflows that are customized for the Customer. A Customized Application consist of a modification of a Base Application performed by or on behalf of Novacura AB.

“Local Software” means any software to be installed locally by the Customer pursuant to section 5.1.

“Novacura” means the supplier specified in the Agreement.

“Novacura Flow Studio” means the platform Novacura Flow Studio, designed and developed by Novacura AB.

“Sales Order” means a written document entered into by Customer and Novacura which specifies the service to be provided to the Customer.

“Subscription Term” means term during which Novacura shall provide the Novacura Marketplace and Applications to the Customer, as set forth in the Sales Order (12 months for Base Application subscription).

“Third Party Products” means any software provided and/or distributed by Novacura to the Customer to which Novacura AB is not the owner.

“User” means a person who is authorized to use the Novacura Marketplace and Applications on behalf of the Customer or in accordance with an agreement with the Customer.

#ApplicationServices

General Terms for Application Management Services

1. Background

These General Terms for Application Management Services (in this document; the “General Terms”) describes the Customer’s rights and the conditions for Novacura’s Application Management Services ordered by the Customer under a Sales Order.

2. Application Management Services

2.1 Novacura will, in a professional and workmanlike manner, provide Application Management Services for the Service, Software and Applications if and as agreed in a valid Sales Order. The Application Management Services are further described in the Service Description for Application Management Services.

2.2 The Customer is entitled to receive the amount of hours of Application Management Services set forth in the Sales Order. Unused hours of Application Management Services expire at the end of the calendar year. The Customer may purchase additional hours of Application Management Services subject to the price set forth in Novacura’s applicable pricelist. Unless agreed otherwise in a Sales Order, the agreed number of hours cannot be transferred between different categories of Application Management Services.

2.3 Unless otherwise agreed in the Sales Order, the Application Management Services are provided during Novacura’s regular business hours which are 8 am-17 pm, Central European Time, Monday-Friday, except for public holidays.

2.4 Subject to Customer’s request, Novacura will provide the Application Management Services in English or Swedish.

2.5 Where the Service Description for Application Management Services contains SLA undertakings, such SLA undertakings shall be Novacura’s sole liability and Customer’s exclusive remedy in respect of the Application Management Services.

3. Application Management Services restrictions

Unless specifically agreed otherwise in a Sales Order, Novacura’s undertaking to provide Application Management Services does not include:

  • to provide training and education on how to use the Software or Applications;
  • to restore lost data; or
  • to deliver Application Management Services for Errors caused by the Customer’s use of the Software or Applications in violation of the applicable service or license terms or recommendations from Novacura.

4. Responsibilities of the Customer

4.1 To enable Novacura’s performance of the Application Management Services, the Customer will:

  • grant Novacura’s personnel access to the Software, Applications and related systems to the extent necessary for Novacura to perform the Application Management Services;
  • procure that the Customer’s IT-environment allows the Application Management Services to be performed by remote access; and
  • secure that sufficiently skilled personnel are available for receiving the Application Management Services provisioned by Novacura.

4.2 Upon the notice of an Error, the Customer shall submit a written report of the alleged Error to the Support Center.

4.3 Novacura is entitled to compensation on a time and materials basis in accordance with its at the time applicable price list for any extra time that Novacura may have to perform if the Customer fails to meet any of its undertaking listed in this section 4.

5. Fees and payment terms

5.1 As consideration for the Application Management Services to be delivered by Novacura to Customer, the Customer shall pay the Service Fee set forth in the applicable Sales Order.

5.2 Unless otherwise agreed, Novacura is entitled to adjust the Service Fee on an annual basis. If the increase exceeds the Swedish preliminary Labor Cost Index (LCI) for non-manual workers within industry J (“information and communication services”), Customer shall have the right to terminate the Application Management Services with a 30 days’ notice period.

5.3 Any Application Management Services during a calendar year exceeding the amount of hours agreed in the Sales Order shall be charged by Novacura in accordance with Novacura’s applicable price list.

5.4 Payment terms

Novacura will invoice the Service Fee for the upcoming calendar year in advance during the fourth quarter each year. Invoices issued by Novacura shall be paid within thirty (30) days from date of issue. Novacura is entitled to add VAT or sales tax (as applicable under local law) on all invoices. Statutory interest rate will be charged from the due date in case of late payment. Where applicable, if the Customer is based or operating in the United States, the Customer is responsible to self-assess any applicable use tax.

5.5 Delayed payment

Payment delayed more than sixty (60) days is considered a material breach of contract, which entitles Novacura to terminate the Agreement with immediate effect unless Customer pays the full amount due within ten (10) days of a written notice from Novacura.

6. Limitation of liability

6.1 NOVACURA DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THESE GENERAL TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO QUALITY, MERCHANTABILITY, OPERABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

6.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED UNDER THESE GENERAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA FOR THE APPLICATION MANAGEMENT SERVICES PURSUANT TO THESE GENERAL TERMS IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE GENERAL TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

6.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.

7. Subcontractors

Novacura may at its own discretion use or engage subcontractors to perform Application Management Services. Novacura shall be responsible for the performance and acts of such subcontractors unless the subcontractor has been appointed by the Customer.

8. Definitions

8.1 Unless the context clearly specifies or requires otherwise, the following terms and expressions used in these General Terms shall have the meanings assigned to them as defined below.

Applications” means the Base Applications and Customized Applications, as further defined in the Agreement.

Application Management Services” means services in relation to the use of the Software and Applications, Application Operation Services and Application Operation Services as further defined in the Service Description for Application Management Services. 

Error” means an error related to the function of the Software or Applications due to configuration or handling of the Software or Applications.   

Service Fee” means the fees for the Application Management as specified in section 5.

Software” means (i) Novacura Flow, including any new releases or updates thereof, and (ii) local software and technical interfaces, created by or behalf of Novacura AB, which integrate Novacura Flow with the Customer’s systems.    

Support Center” means Novacura’s online support center available at http://support.novacura.com as further described in the Service Description.

8.2 Other capitalized words and expressions not defined in these General Terms have the meaning ascribed to them in the Agreement.

#ConsultancyService

General Terms for Consultancy Services

1. Background

These General Terms for Consultancy Services (in this document; the “General Terms”) describes the Customer’s rights to and the conditions for Novacura’s provision of Consultancy Services ordered by the Customer under a Sales Order.

2. Consultancy Services

Novacura shall perform the agreed Consultancy Services in accordance with these General Terms and other terms and conditions stipulated in the Sales Order.

3. Performance

3.1 The Parties shall cooperate and consult each other regarding the performance of the Consultancy Services. Each Party shall appoint a contact person to be responsible for the cooperation with the other Party.

3.2 Novacura shall perform the Consultancy Services in a professional and workmanlike manner with personnel who are qualified and competent for the purpose.

3.3 The Customer shall assist Novacura, and shall provide Novacura with information and documentation, to the extent reasonably required for Novacura to perform the agreed Consultancy Services.

3.4 If a Party becomes aware of a circumstance that might affect the applicable timetable set forth in the Sales Order such Party shall notify the other Party without undue delay.

3.5 If Novacura fails to perform the agreed Consultancy Service in a professional and workmanlike manner, Novacura is obliged to without undue delay, at its own cost, correct such failure in the performed Consultancy Services and/or Results as applicable.

3.6 The remedies set forth in this section 3 shall be the Customer’s exclusive remedy with regard to the performance
and delivery of Consultancy Services and Results.

4. Right to the Result

4.1 Unless otherwise agreed in a Sales Order, the Customer is granted a non-exclusive, perpetual and irrevocable right to use and modify the Result under the terms and conditions stated in the Agreement.

4.2 Nothing in these General Terms shall be construed to transfer any ownership of intellectual property rights from a Party to the other Party.

4.3 Notwithstanding anything to the contrary, Novacura is always free to use the Results or parts thereof for any purposes.

5. Limitation of liability

5.1 NOVACURA DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THESE GENERAL TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO QUALITY, MERCHANTABILITY, OPERABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

5.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE GENERAL TERMS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NOVACURA TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE PRODUCTS AND SERVICES PROVIDED UNDER THESE GENERAL TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO NOVACURA FOR CONSULTANCY SERVICES PURSUANT TO THESE GENERAL TERMS IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE GENERAL TERMS FAIL OF THEIR ESSENTIAL PURPOSE.

5.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AND THEIR AFFILIATES AND PARTNERS SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR BUSINESS INTERRUPTION.

6. Fees and payment terms

6.1 Any specific price agreement regarding the Consultancy Service, and any payment plan for the payments to be made by the Customer, shall be agreed between the Parties. If no specific agreement regarding Novacura’s remuneration has been made between the Parties, the Customer shall pay the Consultancy Service Fee to Novacura in accordance with Novacura’s at each time applicable price list.

6.2 Unless otherwise agreed, Novacura is entitled to adjust the Consultancy Service Fee on an annual basis. If the increase exceeds the Swedish preliminary Labor Cost Index (LCI) for non-manual workers within industry J (“information and communication services”), Customer shall have the right to terminate the affected services with a 30 days’ notice period.

6.3 Invoices issued by Novacura shall be paid within thirty (30) days from date of issue. All prices are exclusive of, and the Customer is responsible for, all fees and taxes, including custom duties, importation fees, sales, use, withholding, gross revenue and like taxes, dues and charges assessed or incurred in connection with the provision of the Consultancy Service under the Agreement. Novacura is entitled to add VAT or sales tax (as applicable under local law) on all invoices. Statutory interest rate will be charged from the due date in case of late payment.

6.4 Payment delayed more than sixty (60) days is considered a material breach of contract, which entitles Novacura to terminate the Agreement with immediate effect unless Customer pays the full amount due within ten (10) days of a written notice from Novacura.

6.5 The Customer shall compensate Novacura for travel and expenses, as well as other similar costs, incurred by Novacura in the performance of the Consultancy Service. The compensation shall be equivalent to the actual cost for Novacura unless otherwise agreed between the Parties.

6.6 If circumstances within the Customer’s control causes Novacura additional work or additional costs, Novacura shall be entitled to compensation by the Customer. The compensation shall be calculated in accordance with Novacura’s at each time applicable price list.

7. Subcontractors

Novacura may at its own discretion use or engage subcontractors in relation to the Consultancy Service. Novacura shall be responsible for the performance and acts of such subcontractors unless the subcontractor has been appointed by the Customer.

8. Infringement

8.1 Novacura will defend the Customer against any claim brought against the Customer by a third party alleging that the Result infringes such third party’s copyright, trademark, or makes unlawful use of such third party’s trade secret and will indemnify the Customer against any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Novacura, arising out of such claim. In the event the Customer has a suit or proceedings brought against it, the Customer shall: (i) notify Novacura without undue delay in writing of any claim, suit or proceeding; (ii) allow Novacura to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Novacura’s expense) to settle the claim or control the defense of any suit or proceeding. In the event that the Result, or any part thereof, is held to constitute an infringement and/or its further use, distribution or other disposal is prohibited or restricted, Novacura shall, at its own expense and at its option, either: (i) procure the licenses necessary for the Customer to exercise the rights and licenses granted hereunder, (ii) replace the infringing Result with non-infringing software or material of equivalent function and performance to the satisfaction of Customer, (iii) modify the Result so that it becomes non-infringing, without materially detracting from function or performance, or (iv) terminate the Consultancy Service and repay the fees prepaid for the Consultancy Services relating to the Result with a reduction for the time-period during which the Customer has used the Consultancy Service.

8.2 Customer will defend Novacura or its affiliates against any claim either (a) brought against Novacura or its affiliates by a third party alleging that (i) any Customer Data or Customer’s use of the Result, (ii) any software or application developed by Customer or a third party application provided by Customer, or (ii) the combination of a third party application or software provided by Customer used with the Result, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Customer’s use of the Result in an unlawful manner or in violation of the Agreement, and will indemnify Novacura and its affiliates from any damages awarded by a court of competent jurisdiction, or agreed in a settlement approved by Customer, arising out of such claim. In the event Novacura has a suit or proceedings brought against it, Novacura shall: (i) notify the Customer without undue delay in writing of any claim, suit or proceeding; (ii) allow the Customer to settle the claim and/or control the defense of any suit or proceedings; and (iii) provide reasonable assistance (at Customer’s expense) to settle the claim or control the defense of any suit or proceeding.

8.3 Novacura shall not be liable to the Customer for infringement claims based on the fact that the Result has been modified, used, operated or combined by the Customer in a manner, to an extent or during a time period for which license was not granted.

8.4 The remedies set forth in this section 8 shall be the Customer’s exclusive remedy with regard to infringement
claims.

9. Customer Data

9.1 The Customer owns all Customer Data. The Customer may require Novacura to create and modify Customer Data within the scope of the Consultancy Service during customization or development of applications governed by the Customer. Any such involvement by Novacura shall be clearly outlined in the instructions to Novacura’s consultants. The Customer is responsible for any such Customer Data and the Results created from it.

9.2 Unless otherwise agreed in the Service Description (a description of Novacura’s products and services, available at https://www.novacura.com), the Customer is responsible for back up, on its own computer, equipment or other device, of any Customer Data that Customer provides to Novacura. Novacura does not guarantee or warrant that any Customer Data that Customer provides to Novacura will not be subject to inadvertent damage, corruption or loss.

9.3 As part of providing the Consultancy Services to the Customer, Novacura may process Personal Data on behalf of the Customer. The Parties acknowledge that Customer is the data controller and Novacura is the data processor and the Parties shall comply with their respective obligations as set out in the Data Processing Agreement. The Data Processing Agreement is hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data.

9.4 After the termination of the Agreement or when reasonably requested by the Customer, Novacura shall return all Customer Data to the Customer in the available format and in accordance with Novacura’s defined routines. Novacura will charge for this in accordance with its at each time applicable price list. Novacura does not guarantee that the Customer Data could be accessed and used properly outside the Service.

10. Definitions

10.1 Unless the context clearly specifies or requires otherwise, the following terms and expressions used in these General Terms shall have the meanings assigned to them as defined below.

”Agreement” means the Sales Order signed by the Parties, the Main Agreement and all appendices, including these General Terms.

“Consultancy Services” means the consultancy services described in the Sales Order.

“Consultancy Service Fee” means the Consultancy Service fees payable by the Customer for the Consultancy Service, as set forth in the relevant Sales Order.

”Customer” means the customer specified in the Agreement.

“Customer Data” means any data or other information (including personal data) that the Customer, or someone on behalf of the Customer, makes available to Novacura.

“Novacura” means the supplier specified in the Agreement.

“Parties” means Novacura and the Customer jointly.

“Party” means Novacura or the Customer individually.

“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or in-directly.

“Sales Order” means a written document entered into by Customer and Novacura which specifies the Consultancy Services to be provided to the Customer.

“Result” means the result of the Consultancy Services performed by Novacura. For clarity, excluding Novacura Flow, Base Applications and Customized Applications.

10.2 Other capitalized words and expressions not defined in these General Terms have the meaning ascribed to
them in the Agreement.

#DataProcessingAgreement

Data Processing Agreement

This data processing agreement (the “Data Processing Agreement”) has been made by and between Customer (the data “Controller”) and Novacura (the data “Processor”), as identified in a Sales Order, (each a “Party” and collectively the “Parties”).

The Parties have agreed as follows:

1. Background

Controller and Processor have entered into an Agreement (including a Sales Order, the Main Agreement and applicable appendices, collectively below the “Agreement”) which involves the Processing of Personal Data by Processor on behalf of Controller. Data Protection Regulations stipulate that processing of personal data by a processor shall be governed by a contract. The Parties have entered into this Data Processing Agreement to comply with the requirements set out in the Data Protection Regulations.

Processor hereby enters into this Data Processing Agreement on its behalf and on behalf of its group companies listed in Appendix 3.

2. Definitions

Application” means any work flow designed by Controller in Novacura Flow Studio.

Data Protection Regulations” means any work flow designed by Controller in Novacura Flow Studio.
means any and all data protection laws and regulations applicable from time to time during the term of this Data Processing Agreement (including but not limited to the Swedish Act on complementary provisions to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (2018:218), EC Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)) as interpreted from time to time by the Court of Justice of the European Union or other court of law that is competent to establish a precedent for such data protection laws.

Data Subject” means an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by refer-ence to an identifier such as a name, an identifica-tion number, location data, an online identifier or to one or more factors specific to the physical, physio-logical, genetic, mental, economic, cultural or social identity of that natural person. 

Personal Data” means any information relating to a Data Subject which is Processed on behalf of Controller by Pro-cessor.

Processing (of Personal Data)” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, stor-age, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combina-tion, restriction, erasure or destruction. 

3. Processing of Personal Data

3.1 Processor may only Process the Personal Data in accordance with the documented instructions from Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by EU law (including the laws of its member states) to which Processor is subject; in such a case, Processor shall inform Controller of that legal requirement before Processing, unless EU law prohibits Processor from informing Controller on important grounds of public interest.

3.2 Controller takes full responsibility for that the data (both Personal Data and other data) Processed under this Data Processing Agreement, including Appendix 1, does not violate any third party rights or otherwise violate applicable laws. Controller takes full responsibility for that the instructions for Processing of Personal Data under this Data Processing Agreement, including in Appendix 1, comply with applicable Data Protection Regulations. The Parties agree that this Data Processing Agreement constitutes the complete and final instructions to Processor for the Processing of Personal Data, including but not limited to a complete list of the categories of Personal Data in Appendix 1 that will be Processed under this Data Processing Agreement. Controller takes full responsibility for Processing of any category of Personal Data not specified in Appendix 1 and all such data shall be excluded from the applicability of this Data Processing Agreement.

3.3 Processor shall immediately inform Controller if, in its opinion, an instruction infringes the Data Protection Regulations. Processor shall not implement such an instruction until it has been confirmed as legally permissible by Controller.

3.4 Processor shall Process the Personal Data for the duration of the Agreement. The (i) type of Personal Data Processed under this Data Processing Agreement, (ii) categories of Data Subjects that the Personal Data concern, and (iii) nature and purpose of the Processing are set forth in Appendix 1.

3.5 When Processing Personal Data under this Data Processing Agreement, Processor shall comply with the Data Protection Regulations.

3.6 Processor shall ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

3.7 Processor shall assist Controller by the technical and organizational measures, as set forth in Appendix 2, for the fulfilment of Controller’s obligation to respond to requests for exercising the Data Subject’s rights under the Data Protection Regulations.

3.8 Taking into account the nature of the Processing and the information available to Processor, Processor shall assist Controller in ensuring compliance with Controller’s obligations pursuant to the Data Protection Regulations, including (where applicable) its obligations to (i) implement appropriate technical and organizational measures, (ii) notify personal data breaches to the supervisory authority, (iii) inform Data Subjects of personal data breaches, (iv) carry out data protection impact assessments, and (v) carry out prior consultation with the supervisory authority.

Processor is entitled to fair remuneration in form of an hourly consultancy fee for work undertaken in respect of this commitment, as agreed upon with Controller and if no such fee has been agreed, Processor’s price list shall apply as applicable from time to time.

3.9 Processor shall, at the choice of Controller, delete or return all Personal Data to Controller after the end of the provision of services relating to the Processing of the Personal Data and delete existing copies unless EU law (including the laws of its member states) requires storage of the Personal Data.

4. Security of Processing

4.1 Processor shall implement appropriate technical and organizational measures as set forth in Appendix 2. Processor makes available a number of security features and functionalities that Controller may elect to use. Controller is responsible for properly (i) configuring the Applications, (ii) using the functions available in connection with the Application (including the security functions), and (iii) taking steps as Controller considers necessary to maintain an adequate level of security, protection, deletion and backup of Controller’s Personal Data appropriate to the risk of Processing such Personal Data. Such steps may include implementing encryption technology to protect the Personal Data from unauthorized access and routine archiving of Personal Data.

4.2 Processor shall ensure that there are technical and practical solutions for investigating suspicions that someone working for Processor or any of its sub-processors has had unauthorized access to the Personal Data.

4.3 Processor shall be prepared to follow any decisions from the supervisory authorities regarding measures needed to meet legal security requirements.

4.4 Processor shall notify Controller, without undue delay, after becoming aware of a personal data breach (as defined in the Data Protection Regulations) affecting the Personal Data and provide Controller with any information reasonably required by Controller regarding such personal data breach. Processor is entitled to fair remuneration in form of an hourly consultancy fee for work undertaken in respect of this commitment, as agreed upon with Controller and if no such fee has been agreed, Processor’s price list shall apply as applicable from time to time.

5. Information and audits

5.1 Processor shall make available to Controller all information necessary to demonstrate compliance with the obligations laid down in this Data Processing Agreement. Furthermore, when a notice has been given thirty (30) days in advance, Processor shall allow for and contribute to audits, including inspections, conducted by Controller or another auditor mandated by Controller. The purpose of such audits shall be to verify Processor’s compliance with the obligations laid down in this Data Processing Agreement. The content and extent of an audit may not exceed what is necessary to achieve the purpose of the audit. Any audits shall be at Controller’s expense, but Processor shall provide any reasonably required assistance free of charge.

5.2 Inspections on Processor’s premises may be performed only in the presence of a representative of Processor, on business days between 9 am and 4 pm. The Controller or auditor shall agree on necessary confidentiality undertakings and comply with the security measures of the Processor at the site where the audit shall be performed. Controller or other mandated auditor shall not have access to confidential information that relates to Processor’s other customers or other personal data that is not Processed under this Data Processing Agreement or Appendix 1. Any information collected in connection with the audit shall be deleted immediately after the completion of the audit or as soon as the information is no longer required for achieving the purpose of the audit.

6. Sub-processors

6.1 Processor is hereby given a general written authorization of Controller to engage another processor to Process the Personal Data (i.e. a sub-processor). Processor shall inform Controller of any intended changes concerning the addition or replacement of sub-processors, thereby giving Controller the opportunity to object to such changes.

6.2 If Processor engages a sub-processor for carrying out specific Processing activities on behalf of Controller, as instructed to Processor in Appendix 1, the same data protection obligations as set out in this Data Processing Agreement shall be imposed on that sub-processor by way of a contract. In particular, such data protection obligations shall provide sufficient guarantees that the sub-processor implements appropriate technical and organizational measures in such a manner that the Processing will meet the requirements of the Data Protection Regulations. Processor shall at all times remain fully responsible for all obligations, acts and omissions of any sub-processor to the same extent as if performed or not performed by Processor itself.

6.3 Upon Controller’s request, Processor shall make available a list of all sub-processors engaged by Processor pursuant to this Section 6, including the locations of where such sub-processors Process the Personal Data.

6.4 Processor is able to provide the following products and services to Controller:

  • Novacura Flow platform;
  • Implementation services for IFS products or other business administration systems; and
  • Cloud hosting services.

When providing implementation services for IFS products or other business administration systems, Controller shall enter into separate data processing agreements directly with the relevant providers of such products and systems.

7. Processing of Personal Data in countries outside EU/EEA

7.1 Processor may transfer or give access to Personal Data to countries outside of the EU/EEA. If Personal Data are transferred outside of the EU/EEA, Processor shall ensure that such Processing at all times complies with the Data Protection Regulations. This may e.g. be achieved by assisting Controller in establishing a binding agreement, in accordance with the applicable EU Commission Model Contracts for the transfer of personal data to third countries, with Processor. Processing in a country outside of the EU/EEA may also take place on the basis of a valid adequacy decision, where the EU Commission has decided that such country ensures an adequate level of data protection.

7.2 If Processor engages sub-processors, and such assistance entails Processing of Personal Data on behalf of Controller outside of the EU/EEA, Processor and sub-processor shall enter into data transfer agreements as required by law for the lawful transfer of Personal Data outside of the EU/EEA, including relevant EU Commission Model Contracts for the transfer of personal data to third countries adopted by the EU Commission (for which Processor is considered the data exporter and sub-processor is considered the data importer).

8. Confidentiality

Processor undertakes not to disclose any information regarding the Processing of Personal Data under this Data Processing Agreement to any third parties or in any other way disclose any other information received as a result of this Data Processing Agreement. The obligation of confidentiality does not apply to information that Processor is ordered to disclose to authorities. In addition to this section 8, any confidentiality commitment in the Agreement shall also be applicable. This confidentiality commitment shall survive the termination of this Data Processing Agreement.

9. Remuneration

Processor is entitled to specific remuneration for the Processing of Personal Data, in accordance with this Data Processing Agreement, in addition to the remuneration stipulated in the Agreement.

10. Responsibility towards third parties

To the extent permitted by applicable laws, any limitation of liability stipulated in the Agreement for Processor shall also be applicable for this Data Processing Agreement. If the Agreement does not include any limitation of liability, the following shall apply to the extent permitted by applicable laws. Novacura’s total liability for any damages, claims or loss of any kind under or in connection with this Data Processing Agreement shall, unless caused by intent or gross negligence, be limited to an amount equal to one hundred (100) % of the total price paid by Controller for each relevant product or service delivered by Processor during the immediately preceding calendar year.

11. Term

This Data Processing Agreement will remain in full force and effect until the termination or expiration of the Agreement.

12. Changes and additions

Changes and additions to this Data Processing Agreement, including to this section 12, must be in writing and duly executed by the Parties. Processor shall not unreasonably withhold its consent to any changes and additions requested by Controller that are necessary to implement for the purpose of fulfilling any mandatory requirements in the Data Protection Regulations.

13. Other

13.1 In addition to this Data Processing Agreement, any relevant provisions in the Agreement shall also be applicable to Processor’s Processing of Personal Data. In case of any conflict between the Agreement and this Data Processing Agreement, this Data Processing Agreement shall take precedence with regard to Personal Data.

13.2 This Data Processing Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Sweden, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction.

13.3 Any dispute concerning the interpretation or application of this Data Processing Agreement shall be settled in accordance with the provisions on dispute resolution in the Agreement.


Appendix 1 – Instructions for processing

DESCRIPTION OF PROCESSING

Categories of Data Subjects whose Personal Data is Processed.

a)     System end users

b)     System designers

c)     System administrators

d)     System developers

e)     Employees

f)       Contractors

g)     Suppliers

h)     Customers

Categories of Personal Data Processed.

a)     Log in information

b)     Names

c)     Email addresses

d)     Phone numbers

e)     Roles

f)       Positions

Sensitive data Processed (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.

a)     N/A

The frequency of the Processing (e.g. whether the Personal Data is Processed on a one-off or continuous basis).

a)     Processing is on a continuous basis and follows the term of the Data Processing Agreement.

Nature of the Processing.

a)     Processor shall Process Personal Data as necessary to provide the Novacura Flow platform to the Controller pursuant to the Agreement.

b)     Processor may not Process the Personal Data for any other purposes than set forth above.

c)     Processor shall Process Personal Data as necessary to provide support, system maintenance and advisory to the Controller pursuant to the Agreement.

d)     Processor may not Process the Personal Data for any other purposes than set forth above.

Purpose(s) of the Processing.

a)     Enabling the provision of the Novacura Flow platform to the Controller pursuant to the Agreement.

b)     Enabling the agreed project deliveries according to the Controller pursuant to the Agreement.

c)     Enabling provision of support, system maintenance and advisory to the Controller pursuant to the Agreement.

The period for which the Personal Data will be retained, or, if that is not possible, the criteria used to determine that period.

a)     Personal Data will be retained as long as necessary for enabling the provision of the Novacura Flow Platform.

b)     Personal Data will be retained as long as necessary for performing agreed project or assignment activities.

c)     Personal Data will be retained as long as necessary for suppling support, system maintenance and advisory.

Subject matter, nature and duration of the Processing for transfers to (sub-)processors.

a)     Enabling the provision of the Novacura Flow platform to the Controller pursuant to the Agreement.

b)     Enabling the agreed project deliveries according to the Controller pursuant to the Agreement.

c)     Enabling provision of support, system maintenance and advisory to the Controller pursuant to the Agreement.

LIST OF SUB-PROCESSORS

The Controller has authorized the use of the following sub-processors:

Sub-processor 1 (for Controller’s outside the EU/EEA)

Name:

Microsoft Corporation

Address:

One Microsoft Way, Redmond WA, USA

Contact person’s name, position and contact details
(optional):

N/A

Description of Processing (including a clear delimitation of responsibilities in case several sub-processors are authorized):

Hosting the Novacura Flow as Software as a Service on the Microsoft Azure platform.

 

Location of non-EU/EEA Processing (if applicable):

USA

Sub-processor 2 (for Controller’s within the EU/EEA)

Name:

Microsoft Ireland Operations, Ltd.

Address:

One Microsoft Place, South County Business Park, Leopardstown, Dublin, Ireland

Contact person’s name, position and contact details
(optional):

N/A

Description of Processing (including a clear delimitation of responsibilities in case several sub-processors are authorized):

Hosting the Novacura Flow as Software as a Service on the Microsoft Azure platform.

 

Location of non-EU/EEA Processing (if applicable):

N/A


Appendix 2 – Technical and organizational measures

1. Novacura Flow

1.1 Novacura Flow platform is a process platform enabling the Controller to design its own workflows (“Applications”) for use within its business operations. The Applications may be used on several different platforms and/or systems with or without the interference of a user. The Applications may include Processing of Personal Data if the Controller chooses to design its Applications in a way that allows Personal Data to be Processed in the Application. Processor provides functionality tools that Controller may use to protect its Personal Data. Controller takes full responsibility for assessing the need for and implementing the adequate level of protection for its Personal Data when designing the Applications. Further, Controller is responsible for documenting what Personal Data is Processed in the Applications.

1.2 Novacura Flow platform provides the following types of user accounts:

  • The users’ access to and authority to use the Application is designed by Controller. A user account may be designated to physical persons or systems within or outside Controller’s organization. Controller may design User accounts with or without restrictions of authorization, e.g. password.
  • Public User. Applications may be designed to provide access to Public Users, which are generic user accounts that do not require identification for accessing and using the Application.
  • Flow Designer. The Flow Designer of the Controller designs the Application and may configure connections to underlying sources of data, create User accounts and distribute authority to Users via the Novacura Flow Studio. The Flow Designer is able to control what types of data that are Processed in the Application. If such data includes Personal Data, the Flow Designer is responsible for designing the Application in a way that ensures compliance with applicable Data Protection Regulations.

2. Technical Security

2.1 Interfaces

2.1.1 Novacura Flow provides access to the Applications via the following user interfaces:

  • Native clients (iOS, android, Windows 10, Windows CE);
  • Web clients; and
  • Novacura Flow Portal

2.2 Connectors

2.2.1 Controller may design its Application by including so called Connectors to the design. Connectors enable the Novacura Flow platform to read from and write in external sources of data of Controller. Controller is able to control what sources of data are connected to the Novacura Flow platform through Connectors.

2.3 Encryption

2.3.1 Controller may encrypt the Native clients by implementing a Mobile Device Management system of its preference. Processor does not encrypt communication to or from Native clients. Controller is responsible for assessing the level of protection needed and to implement technical protection as appropriate for the Personal Data Processed within the Application.

2.3.2 Controller may encrypt the communication between Web clients and/or Novacura Flow Portal and the underlying sources of data of Controller by implementing appropriate encryption functionalities. Controller is responsible for assessing the level of protection needed and to implement technical protection as appropriate for the Personal Data Processed within the Application.

2.3.3 Processor will implement encryption functionalities for communication within the Novacura Flow Portal.

2.3.4 Passwords to the Novacura Portal are protected with a cryptographic hash function implemented by Processor.

2.4 Logs and traceability

2.4.1 All events of users’ log in in and log out are logged for traceability purposes and visible to Processor. When designing the Application, Controller may choose to add additional log points as part of the Application. Controller is responsible for assessing the level of protection needed and to add log points as appropriate for tracing the Processing of Personal Data within the Application.

2.5 Back up

2.5.1 Controller is responsible for backing up its Applications and the results deriving from the use of the Applications as appropriate with regard to applicable Data Protection Regulations. Customer is also responsible for backing up the different underlying sources of data connected to the Application.

2.6 Access for Processor

2.6.1 Processor has no access to the Applications designed by Controller, the results deriving from the use of the Applications or the sources of data connected to the Applications. Processor is not able to see or trace any communication between Controller’s Applications and external sources of data connected to the Applications.


Appendix 3 – List of Novacura group companies

Company name

Company registration number

Melar Holding AB

556916-4899

Novacura AB

556675-8156

Novacura Sverige AB

556835-2438

Novacura Benelux

KvK number 62910787

Novacura Finland OY

Y-Tunnus 2780564-2

Novacura Norge AS

Org.no: 914 345 588

Novacura North America Inc

EIN: 30-0934614

Novacura Deutschland GmbH

9241/133/7069

Novacura Schweiz GmbH

CHE-333.602.354

Novacura Lanka (PVT) Ltd.

PV00203168

Novacura Poland SP Z.O.O.

VAT: PL6772372101

Novacura Australia PTY Ltd

ABN: 42 642 605 301

#UsePolicy

Acceptable Use Policy

This Acceptable Use Policy (the “Policy”) describes prohibited uses of any services and applications, collectively referred to as the “Services and Applications” offered by Novacura AB and its affiliates (referred to in this Policy as “Novacura”, or “Us”, “We”, “Our”), to Our customers and its users of our Services and Applications (referred to in this Policy as “You” or “Your”). The examples described in this Policy are not exhaustive. We may modify this Policy at any time by posting a revised version on www.novacura.com. By using the Services and Applications, You agree to the latest version of this Policy.

Please report violations of this Policy to info@novacura.se. When reporting by email, please include the words “Acceptable Use Policy Violation” in the subject.

Activities that You are prohibited from engaging in when using the Services and Applications

You are prohibited from using, or in any way facilitating or supporting others to use the Services and Applications:

  • to distribute or otherwise make available (i) content that infringes or misappropriates the intellectual property or proprietary rights of others, or (ii) content that is defamatory, obscene, abusive, invasive of privacy or otherwise objectionable;
  • for unlawful, fraudulent, infringing or offensive use;
  • for illegal or fraudulent activities, that violate the rights of other, or that may be harmful to others, Our operations or reputation;
  • to violate, or attempt to violate, the security or integrity of the Services and Applications or any other network, electronic service, computer, application or other technical equipment, hardware and software;
  • for attempting to reverse engineer, decompile or otherwise derive source code, trade secrets, or know-how of the Services and Applications as well as any portion thereof (except as explicitly permitted by mandatory applicable laws);
  • to remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the Services and Applications;
  • to scrape, replicate or compete with core products or services offered by us;
  • to create content or re-create the Services and Applications content; and
  • to sell, lend or commercialize the Services and Applications to any third party.

Additionally:

  • To the extent permitted by applicable law, information You provide or upload to the Services and Applications may be stored outside of the country in which You reside.
  • All rights relating to the Services and Applications is owned by Novacura, Our affiliates or partners and is protected by intellectual property laws. Nothing in this Policy is intended to convey or grant any rights in or to the Services and Applications. Failure to enforce this Policy in every instance does not amount to a waiver of Our rights.
  • You acknowledge that Your account is personal and shall only be used for Your use and not by any other person. You must therefore ensure that no unauthorized person is able to use or lend Your login details. If You suspect that any unauthorized person has obtained access to Your password, You must notify us immediately.
  • You are responsible to “log off”/exit from Your account at the end of each session.

No network, e-mail or other message abuse

You shall not use, or in any way facilitate or support others to use, the Services and Applications to violate, or attempt to violate, the security or integrity of the Services and Applications or any other network, electronic service, computer, application or other technical equipment and software.

You shall not use, or in any way facilitate or support others to use, the Services and Applications for purposes of distributing any form of “spam”, including but not limited to, unsolicited mass email, instant messages or any other form of electronic messaging on a bulk basis to recipients with which You have no preexisting relationship.

Feedback

You may, but have no obligation to, provide feedback or suggestions about the Services or Applications to Novacura, its affiliates or partners (“Feedback“). If and to the extent You provide Feedback, You acknowledge that Novacura may use that Feedback without restriction and without any obligation, and that any intellectual property rights created by or on behalf of Novacura based on such Feedback shall be solely owned by Novacura.

Collection of anonymous technical data

By using the Services and Applications You hereby accept that Novacura may obtain anonymous usage data from Your use. This anonymous usage data information (i.e. it is not personal data) is the sole property of Novacura, which may use this information for its own purposes (including, but not limited to, to perform, further develop and improve the Services and Applications).

Availability

NO WARRANTIES. NOVACURA, AND OUR AFFILIATES, SUPPLIERS, RE-SELLERS, DISTRIBUTORS, PARTNERS AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES AND APPLICATIONS. YOU UNDERSTAND THAT USE OF THE SERVICES AND APPLICATIONS IS AT YOUR OWN RISK AND THAT NOVACURA PROVIDES THE SERVICES AND APPLICATIONS ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE”. NOVACURA DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE SERVICES AND APPLICATIONS. NOVACURA RESERVES THE RIGHT TO REMOVE ANY APPLICATION WHETHER DOWNLOADED BY YOU OR NOT, FROM THE SERVICES AND APPLICATIONS AT ANY TIME IN OUR SOLE DISCRETION. TO THE EXTENT PERMITTED UNDER LOCAL LAW, NOVACURA EXCLUDES ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT.

NOVACURA AND OUR AFFILIATES, SUPPLIERS, RE-SELLERS, DISTRIBUTORS, PARTNERS AND VENDORS ARE UNDER NO CIRCUMSTANCES RESPONSIBLE FOR YOUR LOSS OF PROFITS, LOSS OF EARNINGS OR GOODWILL, LOSS DUE TO DISRUPTION OR DOWN-TIME, LOSS OF DATA, OR YOUR LIABILITY TOWARDS ANY THIRD PARTY, OR INDIRECT OR CONSEQUENTIAL DAMAGE OF ANY KIND WHATSOEVER. NOVACURA IS FURTHER NOT LIABLE FOR THE DATA CONFIDENTIALITY IN CONNECTION WITH THE TRANSFER OF INFORMATION VIA INTERNET WHEN YOU USE THE SERVICES AND APPLICATIONS.

Our monitoring and enforcement

We reserve the right to, in Our sole discretion and judgment, investigate, inspect and monitor any violation of this Policy or misuse of the Services and Applications in order to verify the due and proper fulfilment of the obligations set forth in this Policy. You shall make available to Novacura all information necessary to demonstrate compliance with the obligations in this Policy. If You violate this Policy or authorize or help others to do so, we may immediately terminate or suspend Your access to the Services and Applications. We may also remove, disable access to, or modify any content or resource that violates this Policy or any other agreement governing the use of the Services and Applications. We may cooperate with legal authorities or other appropriate third parties in connection with any investigation of illegal conduct violating this Policy.

Novacura Partners

Some Services and Applications may be provided by Novacura Partners. Please note that such Services and Applications may be subject to the applicable terms and conditions of such Novacura partner (if applicable) in addition to this Policy.

Personal Data

In order to offer You the Services and Applications we will need to process some of Your personal data. For information on Our processing of personal data, please read Our privacy notice  [Privacy Policy].

Cookies

Novacura may use cookies or similar technologies to manage and improve the Services and Applications. Please read Our cookie policy for more information on Novacura’s usage of cookies [Cookie Policy].

Contacting Us

Please contact Novacura in case of any questions regarding this Policy.