This Energinet Terms & Conditions (“T&C”) is together with the Purchase Order a legal agreement (“Agreement”) between the Buyer (“Buyer”) (the legal entity represented), and Kiona Sweden AB, reg. no. 556734-6738, with registered address Gustavlundsvägen 137, 167 51 Bromma, Sweden (hereinafter referred to as “Kiona”), for the software Energinet EOS-system (“Software”), which includes a software cloud service, options and addons related to the cloud service, associated media, user manual, printed materials and electronic documentation as well as all modifications, updates, upgrades, new version or releases and derivative works to the foregoing.
BUYER AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ADDENDUMS OR AMENDMENTS WHICH MAY ACCOMPANY THE AGREEMENT BY, USING, COPYING OR OTHERWISE HANDLING THE SOFTWARE. IF BUYER DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE in ANY WAY.
1.1 Buyer, is a Partner or an End Customer.
1.2 End Customer, is a real estate owner company.
1.3 Partner, is a company procuring the Software to transfer it to an End Customer, or deliver services to an End Customer with the help of the Software.
1.4 Special Terms, are written changes to the Purchase Order, signed by both the Buyer and the Kiona (both together called “Parties”). The Special Terms is part of the Agreement.
1.5 Software Fee, is a combination of a one-time Startup price and regular Subscription fee
2 Grant of Software use
2.1 Grant of Software. Provided that Buyer complies with the terms and conditions of this T&C, Kiona grants Buyer from the date of supply of the Software a non-exclusive, restricted, perpetual, revocable, within the European Union and Norway, permission to:
a) Use. Buyer may use the Software within the configuration and capacity limits specified, in Agreement. The Software may be used from an unlimited number of clients.
b) Partners may use the Software as part of a bigger service offered to End Customers.
c) Transfer of Software use. If representing a service and integration Partner of Kiona, if indicated in the Purchase Order, a Partners is allowed to procure the Software in order to transfer the Software to an End Customer without prior written consent from the Kiona.
2.2 Limitations in Use. Buyer will not:
a) Use, access or display functions that are not specified in the Agreement;
b) Exceed the configuration and capacity limits that are specified in the Agreement.
2.3 Restrictions of use. Buyer will not use the Software for planning, constructing, maintaining, or operating, directly or indirectly, of nuclear facilities, flight navigation, aircraft control, air traffic control and ground supported equipment, missile technology and facilities for weapons of mass destruction.
2.4 Upgrades and additional software. This T&C applies to modifications, updates, upgrades, new versions or releases, derivative works of or supplements to the original Software provided by Kiona, unless other terms are provided with such future releases, derivative works, or supplements. When Buyer have upgraded the Software, Buyer acknowledges that Buyer may no longer use the Software that formed the basis for the upgrade eligibility.
2.5 Software Fee. The Software Fee is specified in the Purchase Order and shall be compensated to the Kiona. For integration partners, the Software Fee is specified as per the applicable partner agreement with Kiona.
2.6 Payment Terms.
2.6.1 Unless otherwise agreed in the Purchase Order, the Software Fee are invoiced as:
126.96.36.199 For Startup price, one-time payment, at the time of the procurement.
188.8.131.52 For Subscription fee, afterwards in the end of each calendar month.
2.6.2 All invoices shall be paid within 30 days of the invoice date; and (c) if the Buyer is in delay with payment, Kiona shall be entitled to the payment of interest under Swedish law (Räntelagen) and may charge fees for administrating invoices and payments and reminders due to late payment.
2.7 Third Party Software and Open Source Software. The Software may include software, which is owned by a third party, including but not limited to open source software (“Third Party Software”). For Third Party Software the conditions of use agreed between Kiona and its Kionas shall apply with priority.
3 Proprietary Rights
3.1 Source Code of the Software. Nothing in this T&C shall give any stakeholder in i.e., but not limited to, Buyer, Partners, or any other person or company, any right to access or use the Source Code or constitute any licence of the Source Code.
3.2 Reservation of Rights. The Software is not sold and all copyright, and other intellectual property rights in and to the Software is and will remain the exclusive property of Kiona or its Kionas. Nothing in this T&C shall assign or transfer any Intellectual Property Rights from Kiona to the Buyer.
4.1 Buyer undertakes not to disclose to any third party any trade secret information of commercial or technical nature provided by Kiona and shared as part of or in association with the Software. Buyer and Partner agree to not disclose any benchmark results or test result related to the Software, and agree to take all reasonable action with employees, representatives, agents or consultants who are permitted to access the Software to ensure compliance with obligations under this Agreement, and are fully liable and responsible for all acts and omissions of such employees, representatives, agents or consultants.
4.2 Disclosure shall be limited to those individuals that require access to the Software on a need-to-know basis.
4.3 The Confidentiality Undertaking in this section 4 shall be in effect from the signature of any agreement that will include this T&C during the term of the Agreement and up and until five (5) years after the end of the term of this T&C.
5 Restrictions of Software
5.1 The Buyer will not:
a) Use the Software for any third party use, including sub-agreements, sell, resell, rent, lease, loan, supply, publish, distribute or redistribute, transfer, assign, disclose or otherwise commercially exploit or make it, or any portion thereof, available to any third party, except for the conditions set in section 2.1;
b) modify, tamper with, change, alter, edit, repair, adapt or make derivative works based upon the Software;
c) copy, reproduce, publish, disassemble, decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer (to the extent permitted by applicable law), attempt to derive the source code of, modify, emulate, or create derivative works of the Software;
d) copy any ideas, features, functions or graphics of the Software;
e) access or use the Software in a way to avoid incurring fees or exceeding usage limits or quotas or to circumvent or render inoperable any usage restriction features contained in the Software; and/or
f) remove, obscure, alter or move Kiona’s and its Kiona’s proprietary notices.
5.2 Restrictions regarding the Code. Nothing in this T&C permits Buyer to derive the source or assembly conde of files provided to Buyer in executable or object format.
5.3 Security of Copies. Buyer shall be responsible for the security of copies of the Software supplied to Buyer under this T&C and shall use all reasonable endeavours (including all reasonable security measures) to ensure that access to such copies is restricted to persons authorised to use them under this T&C.
6 Transfer of Rights
6.1 The Buyer may without prior written consent from the Kiona (which shall not be unreasonably withheld) not transfer or assign the Software outside its own group of companies, except for the conditions set in section 2.1. For the avoidance of doubt, the Kiona’s prior written consent will be required in case of the Buyer’s merger or bankruptcy.
7.1 The Buyer warrants to the Kiona that Buyer has the legal right and authority to enter into this Agreement and to perform its obligations under this T&C.
7.2 The Kiona warrants to the Buyer that, subject to the limitations and conditions set out in this T&C:
a) the Software as provided will substantially conform in all material respects with the specification of the Software;
b) Kiona will not materially decrease the overall security of the Software; and
c) the Software shall incorporate security features reflecting the requirements of good industry practice.
7.3 Compliance with Laws. The Kiona warrants that the Software, when used in accordance with this T&C, will not breach any laws, statutes or regulations applicable under Swedish law.
7.4 Warranty regarding Infringement of Intellectual Property. The Kiona warrants that the Software, when used in accordance with this T&C, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under applicable law.
7.5 Infringement of Intellectual Property. If the Kiona reasonably determines, or any third party alleges, that Buyer’s compliant use of the Software infringes any person's Intellectual Property Rights, the Kiona may act reasonably at its own cost and expense, which shall be the Buyer’s exclusive remedy and Kiona’s exclusive responsibility:
a) obtain the right for Buyer to continue to use the Software and/or Documentation as contemplated by this T&C free of any liability for infringement or violation; or
b) modify or replace the Software and/or Documentation, in whole or in part, with, or to seek to make the Software and/or Documentation non-infringing, while providing materially equivalent or better features and functionality, and such modified or replacement software will constitute Software under this T&C that is reasonably satisfactory to Buyer; or
c) if neither of the foregoing options can be obtained on commercially reasonable terms and within a commercially reasonable period of time, the parties shall work in good faith to reach agreement on a solution to resolve the infringement or violation of the Software and/or Documentation given the totality of the circumstances; or
d) if, after Kiona’s exercise of commercially reasonable efforts, none of the remedies set forth in the above is reasonably available to Kiona, Kiona may terminate this TT&C and the Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Buyer, in which event: (i) Buyer will cease all use of the Software and Documentation immediately on receipt of Buyer’s notice; and (ii) provided that Buyer fully complies with its post-termination obligations set forth in this T&C, Kiona will promptly refund to Buyer, on a pro rata basis, the share of any Software fees prepaid by Buyer for the future portion of the Term that would have remained but for such termination.
7.6 No Implied Warranties. All of the parties' warranties and representations in respect of the subject matter of this T&C are expressly set out in this T&C. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this T&C will be implied into this T&C or any related contract.
7.7 Exclusive Remedy. Kiona’s, its affiliates’ and its suppliers’ and Kionas’ entire liability and Buyer’s exclusive remedy for non-compliance with Kiona’s warranty shall be, at Kiona’s sole discretion to, wither (a) refund to Buyer, on a pro rata basis, the share of any Software fees prepaid by Buyer for the future portion of the term that would have remained but for such termination, or (b) modify or replace the Software that does not meet Kiona’s limited warranty, in whole or in part, and which is returned to Kiona with a copy of the Purchase Order as applicable.
8 Acknowledgements and Warranty Limitations
8.1 Buyer acknowledge that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this T&C, the Kiona gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
8.2 Buyer acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this T&C, the Kiona gives no warranty or representation that the Software will be entirely secure.
8.3 Buyer acknowledge that the Kiona will not provide any legal, financial, accountancy or taxation advice under this T&C or in relation to the Software; and, except to the extent expressly provided otherwise in this T&C, the Kiona does not warrant or represent that the Software or Buyer’s use of the Software will not give rise to any legal liability on the part of the Buyer or any other person.
9 LIMITATION OF LIABILITY, INDEMNITY
9.1 Kiona shall not be liable for death, personal injury or damage to property unless it can be shown that the damage is a result of gross negligence on the part of Kiona. If the Buyer incurs liability towards any third party for such damage as described above, the Buyer shall indemnify, defend and hold Kiona harmless.
9.2 Kiona shall not in any event be liable for indirect and consequential losses and damages. Indirect and consequential losses and damages include but are not limited to: loss of earnings, loss of data, loss of profits, loss of use, loss of opportunities, loss due to pollution and loss of production.
9.3 All aggregated liabilities on Kiona including, but not limited to, any claims, indemnities, reduced fee, compensating development or product changes, extended support, damages, losses, costs and expenses (including legal, expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Buyer and arising directly as a result of any breach by the Kiona of this T&C (a "Kiona Indemnity Event”), shall in no event exceed the amount paid by the Buyer to Kiona during the twelve (12) months period immediately preceding the date the liability has been established.
All liabilities and disputes should be subject to limitations in Section 8.
9.4 The Buyer shall use the Software Solutions and Infrastructure Services only for legal purposes and in accordance with the terms of this T&C.
9.5 The Buyer must:
a) upon becoming aware of an actual or potential Kiona Indemnity Event, notify the Kiona;
b) provide to the Kiona all such assistance as may be reasonably requested by the Kiona in relation to the Kiona Indemnity Event;
c) allow the Kiona the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Kiona Indemnity Event; and
d) not admit liability to any third party in connection with the Kiona Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Kiona Indemnity Event without the prior written consent of the Kiona,
without prejudice to the Kiona’s limitations under section 9.3.
9.6 The claim and indemnity protection set out in this section 9 is subject to the limitations and exclusions of liability set out in section 10 of this T&C.
10 Limitations and Exclusions of Liability
10.1 Nothing in this T&C will: (a) limit or exclude any liability for death or personal injury resulting from negligence; (b) limit or exclude any liability for fraud or fraudulent misrepresentation; (c) limit any liabilities in any way that is not permitted under applicable law; or (d) exclude any liabilities that may not be excluded under applicable law, and, (d) if a party is a consumer, that party's statutory rights will not be excluded or limited by this T&C, except to the extent permitted by law.
10.2 The limitations and exclusions of liability set out in this section 10 and elsewhere in this T&C are subject to section 10.1 and govern all liabilities arising under this T&C or relating to the subject matter of this T&C, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this T&C.
10.3 The Kiona and its third party Kionas will not be liable to the Buyer in respect of any losses arising out of a Force Majeure Event, any loss of profits or anticipated savings, any loss of revenue or income, any loss of business, contracts or opportunities, any loss or corruption of any data, database or software, or any other special, indirect or consequential loss or damage.
10.4 Parties shall indemnify the other Part for any use in violation of source code limitations stated in this T&C.
11 Export Restrictions
11.1 Buyer acknowledge that the Software may be subject to domestic and/or foreign provisions and regulations regarding export control and, without export or re-export authorizations from the competent authorities, may not be sold, leased or otherwise transferred or used for a purpose other than the agreed upon. Buyer agree to comply with such provisions and regulations. Buyer also acknowledge that such provisions and regulations may change and that Buyer shall keep updated on the applicable rules from time to time.
12 Cyber Security
12.1 Buyer shall establish and maintain any suitable technical and organizational security measures (such as, but not limited to, the installation of firewalls, application of authentication measures, encryption of data, installation of anti-virus programs, etc.) to protect the Software, the network, Buyer’s system and the interface against any security breaches, unauthorized access, interference, instruction, corruption, destruction, data leakage and/or theft of data or information.
12.2 Kiona and its affiliates are not liable for damages and/or losses related to such security breaches, unauthorized access, interference, instruction, corruption, destruction, data leakage and/or theft of data or information.
13.1 Kiona may terminate this Agreement at any time in full or in part if Buyer do not comply with the terms and conditions of this T&C, Buyer has proceedings under any bankruptcy, insolvency or debtor’s relief law. Example of, but not limited to, such non-compliant is, Software fee not paid in time.
13.2 If applicable, demo software and fixed term software’s will expire automatically at the end of their respective software term.
13.3 In case of termination or expiration of this Agreement Buyer must immediately stop using the Software.
13.4 Any terms of this T&C that in writing extend beyond termination of this T&C shall remain in effect until fulfilled, and both parties shall undertake to bind their respective successors and assignees by such terms.
14 Applicable Law and Dispute Resolution
14.1 This Agreement shall be governed and construed in accordance with Swedish law, under exclusion of its conflict of laws rules and the United Nations Convention on International Sale of Goods.
14.2 Any dispute, controversy or claim arising out of, or in connection with this Agreement, or the breach, termination or invalidity hereof, which cannot be settled amicably between the parties, shall be finally settled by under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of a single arbitrator. The language that is to be used in the arbitral proceedings shall be Swedish, or English as agreed by the Parties.
15 Data Processing Agreement (“DPA”)
15.1 Kiona undertake to comply with the DPA in the following link:
16 Force Majeure
16.1 Neither Kiona or Buyer shall be hold responsible or liable for failure to perform any of its obligation under this Agreement if such failure results from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”).
16.2 If the performance of the Agreement is substantially prevented in a material aspect for a period longer than six (6) months due to certain circumstances stated above, each party is entitled to terminate the agreement in writing without compensation.
17.1 If any provision of this Agreement is found to be held invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
18 Entire Agreement
18.1 The Purchase Order and this T&C constitutes the entire agreement between the parties, and no promise, undertaking, representation, warranty or statement by either party prior to the date of the Purchase Order and this T&C shall affect the parties’ agreement.
19 Order of Precedence
19.1 In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) Special Terms ibn the Purchase Order agreed by both parties in writing, (2) Purchase Order, (3) this T&C, and (4) the Documentation. Appendices shall take precedence in numerical order.
20.1 The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
21 Contact information
- Currently support is given in English/Norwegian
- +47 982 50 007
Kiona Sweden AB
167 51 Bromma
© Kiona Sweden AB. All rights reserved.
Distribution and/or Software of this document
or parts thereof in any form is only permitted with
the written permission of Kiona Sweden AB. Technical data
contained herein is provided for informational use
only and are not legally binding. This T&C is subject
to change, technical or otherwise.