Parties and provisions

1. These Software services terms and conditions (Terms and conditions) apply to the use of the software services AGR Demand Planner (Software services), produced by AGR Dynamics ehf. (Seller), by any entity that has executed with Seller a Services order form for subscription to the Software services (Subscriber). The Terms and conditions apply from the effective date of the subscription, printed on the applicable Services order form (Effective date).
2. While these Terms and conditions apply, Subscriber is granted from Seller:
   a. A limited license to access online, via Seller’s website at the URL portal.agrdynamics.cloud, and to use, to the extent described in clause below, the Software services.
   b. The right to access technical support for the Software services, to the extent described in clause 3.5 below.
3. No other rights or licenses are provided under these Terms and conditions.

License to access and use Software services

1. The limited license granted to Subscriber to use the Software services is non-exclusive and non-transferable, and extends only to access and use that can reasonably be deemed part of Subscriber’s internal business purposes, solely from and in those stores, webshops and warehouses that are either branded as Subscriber or being operated by a company that is in the same company group as Subscriber and are operated within the same ERP database.
2. All other rights than those provided in clauses 2.1. above are expressly reserved by Seller, who is and remains the sole owner of the Software services and all rights pertaining thereto, including any intellectual property rights in the Software services, including related methods, ideas, know-how, procedures, algorithms, source code, and documentation. These Terms and conditions do not in any way transfer any such rights
   to Subscriber in any respect.
3. Subscriber’s limited license to the Software services is additionally subject to the following limitations:
   a. The Software services may only be used in accordance with Seller issued user instructions from time to time.
   b. The license is limited to the version of the Software services that is current at each given time. Rights to update the Software services rest solely with Seller, as described in clause 3 below.
   c. Rights of access to the Software services are limited to named users, selected by Subscriber, from those who are directly engaged in the use, support, or maintenance of the Software services.
   d. This license does not grant any rights to performing or attempting any of the following: To modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the software used to provide the Software services to any human-perceivable form, work around any technical limitations of the Software services, or create derivative works based on the Software services or any part thereof, provide commercial hosting of the Software services or to publish the Software services for others to copy or utilize in any manner.

Maintenance of and updates to the Software services

1. The Software services will be maintained and periodically updated by Seller as needed to implement various bug fixes, changes, and new functionality.
2. At any given time, Subscriber is only entitled to access the then-current version of the Software services. Seller will not be required to maintain older versions of the Software services after an updated version has been issued.
3. Seller will alert Subscriber in a timely fashion before performing major updates to the Software services. Subscriber is responsible for verifying that, within scope of Subscriber’s operations, the Software services will continue to perform materially in line with its published specification after updates have been made to the Software services.
4. Should Subscriber wish Seller assist Subscriber in making adjustments or modifications to Subscriber’s systems, to establish, re-establish, or increase compatibility with the Software services, such activities will be regarded as ordinary paid work and billed separately.
5. Subscriber who encounters errors or malfunctions in the Software services shall submit to Seller a detailed report, in English, describing the relevant errors or malfunction. It is the sole discretion of Seller whether, how, and when to act in response of such reporting, e.g. by updating the Software services.
   

Hosting of Subscriber’s data

1. Using the Software services entails Subscriber providing data for processing by the services (Hosted data). To the extent that Seller may set limits on how much data Subscriber may process using the Software services, such limits are listed in the relevant executed Services order form, and will be updated from time to time on Seller’s website, referred to in the clause 1.2 above. Subscriber is not permitted to attempt to exceed such limits as that may lead to a degradation of the Software services, such as the stability, performance, or response time of the services.
2. While these Terms and conditions apply, Subscriber has access to Hosted data through the interface of the Software services and the tools made available therein, including functionality to download the data in spreadsheet form (Microsoft Excel file format). Seller will not provide other means of accessing Hosted data. In addition, although backup copies are made by Seller, for continuity and security purposes, of the Software services, and such backups can include Hosted data processed by the services, such backups or data contained therein, will not be made available to Subscriber. Therefore, Subscriber should, in all cases, retain for its own purposes the original data that it intends to process via the Software services and treat Hosted data as disposable copies thereof.

Subscriber’s additional obligations

1. Subscriber shall:
   a. Promptly fulfill every one of its obligations under these Terms and conditions, including paying, no later than when due, any fees payable to Seller.
   b. Observe at all times, without fault, all the limitations and requirements of the granted licenses to the Software services, cf. clause 2 above, Subscriber’s duties related to maintenance and update of the Software services, cf. clause 3 above, and its duties relating to data protection, cf. 7 below.
   c. Promptly notify Seller as soon as practicable after Subscriber becomes aware of: (i) any actual, threatened or suspected infringement of any intellectual property, including know-how, in respect of the Software services, any related material or of any breach of confidence relating to any of the foregoing; (ii) any claim brought against Subscriber alleging that its use of the Software services or any related material infringes any intellectual property or other rights belonging to or alleged to belong to the claimant or another third party.
   d. Take those steps, in a timely manner, that are necessary to protect the confidential information and intellectual property rights of Seller in the Software services, and to ensure the compliance with the provisions of this clause 5., and of clause 6 below, by Subscriber’s employees, agents and contractors that may come in contact with the Software services. This duty shall continue to apply after Subscriber’s subscription has ended.
2. Subscriber shall not, except as expressly permitted in these Terms and conditions:
   a. use, copy, modify, or make the Software services available, in whole or on part, to third parties;
   b. reverse assemble, reverse compile, otherwise translate, or reverse engineer the Software services;
   c. use any of the Software services’ components, files, modules, audio/visual content, or related licensed materials separately from the Software services;
   d. sublicense, rent, or lease the Software services or access thereto;
   e. create internet “links” to or from the Software services; or
   f. “frame” or “mirror” any content forming part of the Software services, other than on Subscriber’s own intranets in connection with Subscriber’s authorized use of the Software services.

Confidentiality

1. All technical, business, economic and legal information exchanged between the parties in connection with the Software services and these Terms and conditions are confidential and may not be disclosed to third parties, unless agreed to in advance by the parties, for five years after Subscriber’s subscription has ended.
2. Information that has become publicly available before the Effective date, or by no action or inaction by the parties, shall not be construed as confidential.
3. Seller can use Subscriber’s name and logo as reference in Seller’s marketing and sales activities but any public announcement of Subscriber’s subscription to Seller’s Software services must be pre-approved by Subscriber.

Data protection

1. The parties hereto shall comply with their respective obligations under all applicable data protection laws with respect to these Terms and conditions.
2. These Terms and conditions are limited to providing Subscriber with rights to the use of Seller’s certain software services and hosting of associated data of Subscriber’s, but does not extend to e.g. hosting of any personal data or any other activity that could entail processing of personal data. To that end, Subscriber shall not use Seller’s hosting services of its data to store or otherwise process any personally identifiable data, and shall ensure that all user identification is without any personal data (e.g. “user 1”). The Terms and conditions do not charge either party hereto with carrying out any processing of any personal data, including on behalf of its counterparty. Hence, neither party will act in the capacity of a ‘controller’ or ‘processor’ in respect to its counterparty, in relation to these Terms and conditions, as defined by any applicable data protection legislation.

Assignment of rights

1. Rights granted to Subscriber under these Terms and conditions are granted to Subscriber only and Subscriber is neither entitled to assign, transfer, sell, resell, distribute, lease rent, mortgage, charge, loan, granting security interest in, or otherwise transfer or sub-license any rights under these Terms and conditions, in whole or in part, nor to exercise them on behalf of or for the benefit of any other party, nor allow any third party to have access to the Software services, in each case except with Seller’s express prior written approval.

Term and Termination

1. These Terms and conditions apply to Subscriber’s subscription to the Software services from the Effective date until the end of the last subscription period which Subscriber has paid for in full in advance, or until end of the notice period set out in clause 9.3 below, whichever occurs first.
2. If a payment in full for an upcoming subscription period has not been received by Seller from Subscriber by the end of the then-current subscription period, Subscriber’s subscription shall be considered having been terminated by Subscriber as of the end of the then-current subscription period.
3. Subscriber can, by providing Seller with a written notice thereof at least one month prior to the end of any subscription period, voluntarily terminate its subscription to the Software services, effective as of Seller receiving such notice. This will however not provide Subscriber with any right to a partial refund of any payment for the then-current or previous subscription periods.
4. Either party may terminate Subscriber’s subscription to the Software services with immediate effect if that is a reasonable response to an intellectual property infringement claim, to a court or other governmental order, or to a material change made to these Terms and conditions, cf. clause 12.2. In that case, Seller will refund Subscriber the payment received from Seller for the then-current subscription period, prorated to the number of days then remaining of the subscription period.
5. Upon termination of the subscription, Subscriber’s license and rights to use the Software services immediately cease, and Seller is authorized to suspend Subscriber’s access to the Software services. If the reason for the termination is resolved within three months thereof, e.g. by Seller receiving full payment for the subscription periods up to and including the next period after the then-current one, Subscriber’s will regain its license and rights to use the Software services and its access to the Software services will be reinstated. However, if the reason for the termination is not resolved within that time period, Subscriber’s account will be permanently closed, and any Hosted data and backups thereof will be deleted from the services.
6. Notwithstanding any expiration of these Terms and conditions or termination of Subscriber’s subscription to the Software services, the following rights and obligations shall survive:
   a. Any of Seller’s rights or remedies under these Terms and conditions, with regards to any cause of action or claim of either party, whether or not accrued at the time of termination, arising from the other party’s breach of or failure to perform any obligation under these Terms and conditions.
   b. In addition to the rights and obligations which survive as expressly provided in these Terms and conditions, any clauses which by their nature should survive, shall survive and continue after any termination or expiration hereunder.

Warranty and liability

1. Seller warrants that it is the owner of and/or controls all intellectual property rights and any other rights to the Software services necessary to meet its obligations under these Terms and conditions.
2. Due to the nature of the Software services as a collection of software applications, it is inherently subject to unforeseen behavior. Hence, Seller does not warrant that the Software services will work without errors, interruptions or failures. However, Seller does warrant that the Software services will substantially conform in all material respect to its published specification for a period of twenty four months from the Effective date.
3. All other warranties, guarantees or conditions that may be implied under applicable law, including without limitation any warranties as to the effectiveness, performance, quality, merchantability, durability or fitness for any purpose of the Software services or any related material or services, or that the Software services, or any related material or services supplied by Seller is free from any defect or error, are hereby excluded by Seller to the fullest extent permitted by law. However, Seller does not exclude liability for death or personal injury caused by its negligence, nor for fraud or fraudulent misrepresentation.
4. If the Software services fails to comply with the warranty, set out in clauses 10.1. and 10.2 above, then Seller will fully refund Subscriber the amount shown on its receipt for payment for the license to use the Software services for the current subscription period. Subscriber is not entitled to any further remedy for breaches of warranty relating to these Terms and conditions.
5. Neither Seller nor its partners shall in any case bear any liability for any consequential or indirect losses, including any loss of data, damages, costs, expenses or other claim for loss of profits or revenues, business interruption, overstock situations, additional workload, or loss of data or business information, whether or not occasioned breach of contract or by the negligence of Seller, its employees, partners or agents or otherwise, arising out of or in connection with these Terms and conditions or its termination, even if advised of the possibility of such damages.
6. In any event, the aggregate maximum liability of Seller and its partners shall in no case exceed the amount of fees paid, to Seller under these Terms and conditions, within the 12 months preceding the date when a written claim was sent by Subscriber of the event on which the liability is based.

Governing law and jurisdiction

1. These Terms and conditions is subject to and governed by the laws of Iceland and any dispute arising in connection with the Terms and conditions is subject to the exclusive jurisdiction their courts of Iceland. Each party to the Agreement hereby irrevocably attorns to this selection of governing laws and jurisdiction.
2. Notwithstanding the foregoing, Seller and its partners reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other similar order, including obtaining full payment of all fees and costs under these Terms and conditions from any court of competent jurisdiction.

Version control

1. The current version of these Terms and conditions is version 1.0, effective from 1 March 2022.
2. Seller is entitled to update and change these Terms and conditions, provided that the updated version is promptly published on Seller’s website, referred to in clause 1.2 above. If any material changes are made to these Terms and conditions, Seller shall in addition notify Subscriber of the changes made. If Subscriber does not consent to the changes made, it can, by providing Seller with a written notice thereof within 30 days of receiving notice of the changes, terminate its subscription in accordance with clause 9.4 above.