Healthguard Enterprise Agreement

This Healthguard Enterprise Agreement (“EA”) between Customer and Healthguard governs the provision of the Healthguard Services and Resources to which Customer has subscribed pursuant to an Order Form signed by Customer referencing this EA. This EA, including any appendices or annexes hereto, together with the Order Form(s) and any appendices or annexes thereto, shall be collectively referred to as the “Agreement”. In the event of any inconsistency or conflict between the terms of this EA and the terms of any Order Form, the terms of the Order Form shall control. 

1. Licensed Rights

The Services and the Resources are the property of Healthguard and Healthguard’s content licensors, as applicable.  We hereby grant You the License to use the Services and Resources in accordance with the terms of this Agreement, including the applicable Order Form(s) and  the Service Plan to which you have subscribed.. 

Access to and use of the Services is restricted to the specified number of User Licenses permitted under Your Service Plan, subject to any upgrades. You acknowledge and agree that each User account is personal and may only be used and accessed by the specified User. However, You may reassign a User License to a new User replacing a previous User who no longer requires ongoing use of the Services.

All rights not expressly granted by Healthguard to You are expressly and unconditionally reserved by Healthguard and may not be implied by or inferred from any provision of this Agreement or by the conduct of the Parties.  For the avoidance of doubt, this Agreement does not grant You any rights to use any Healthguard Brands for any purpose, whether for commercial or non-commercial use.

If You send us ideas or feedback about our Services, You agree that we may freely use or reference those ideas and feedback and do not owe You any payment or have any other obligation of any kind for such ideas or feedback.

2. Use of the Services

You are responsible for Your Users’ use of the Services and Resources and shall ensure that all Users adhere to this Agreement at all times.  

You may appoint Users as Administrators. Administrators may access, disclose, restrict, or remove User Content in or from Users’ accounts, and monitor, restrict or terminate access to Users’ accounts. 

Healthguard may suspend any use of the Healthguard Services, or remove or disable any User account or User Content that Healthguard reasonably and in good faith believes violates this Agreement. Healthguard will use commercially reasonable efforts to notify You prior to any such suspension or disablement, unless Healthguard reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as government administrative agency processes or court orders); or (b) it is necessary to delay notice in order to prevent imminent harm to the Healthguard Services or a third party. Under circumstances where notice is delayed, Healthguard will provide notice if and when the related restrictions in the previous sentence no longer apply. 

3. Customer’s Data and User Content

User Content is available to You and Your Administrators and Users only. We will keep all data that You and your Users submit to the Services secure and only process Your data for the purpose of providing the Services to You, at all times in compliance with the Data Processing Agreement.

Subject to the terms of the Agreement, You grant Healthguard a worldwide, non-exclusive, limited term license to access, use, process, and display User Content only: (a) as reasonably necessary to provide, maintain and update the Services; (b) as reasonably necessary to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Data Processing Agreement; and (d) as expressly permitted by You in a separate agreement with us. You represent and warrant that (y) all rights necessary to grant the rights hereunder to Healthguard have been obtained and (z) User Content will not violate the Agreement, applicable law, or the rights of third parties.  Healthguard reserves the right to remove or disable access to any User Content that breaches the Agreement or applicable law, without prior notification to Customer or any third party. 

Healthguard will delete all User Content from You or Your Users upon termination of the Agreement, and otherwise in accordance with Healthguard’s Privacy Policy or the Data Processing Agreement (as applicable).

4. Account Security

You are responsible for maintaining control over the devices and accounts that are used to access the Service and Resources and the confidentiality of passwords and any payment details associated with Your accounts. You are responsible for updating and maintaining the accuracy of the information You provide to us relating to Your accounts. You are also responsible for preventing unauthorized access and use of Your account by anyone other than Your Users. Healthguard can suspend or terminate an account in order to protect You, Healthguard or our partners from fraudulent activity.  

5. Fees and Payment

You will pay all Fees set forth on an Order Form.  All payments will be made in the currency specified on the Order Form unless otherwise agreed to by the Parties in writing. If You provide credit card information to Healthguard, You authorize Healthguard to charge such credit card for all Services and User Licenses, as applicable, listed in the Order Form for the initial Subscription Period and any renewal Subscription Period(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Healthguard will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Healthguard and notifying Healthguard of any changes to such information. In addition to any other remedies available, Healthguard may suspend Services in the event of payment delinquency.  Fees are exclusive of all local, state, federal or foreign taxes, VAT, levies or duties of any nature. You are responsible for payment of all taxes due to a governmental authority, if any, except for taxes imposed on Healthguard’s net income. You shall provide to Healthguard any certificate of exemption or similar document required to exempt any transaction under an Order Form from sales tax or other tax liability.

6. Upgrades

If You choose to upgrade Your Service Plan or purchase additional User Licenses or other options as may be available during a Subscription Period, any incremental fees associated with such upgrades will be prorated over the remaining period of the then-current Subscription Period, billed to Your account and due and payable upon implementation of such upgrades. In any future Subscription Periods, the fees billed to You will reflect any such upgrades.

7. Publicity

Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Healthguard Services unless the prior written consent of the other Party has been obtained, provided, however, that Healthguard may use Your name and logo for the limited purpose of identifying You as a customer of the Healthguard Services.

8. Confidential Information

Each Party will protect the other Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. 

9. Term and Auto-Renewal

Your subscription(s) shall commence on the date specified on the Order Form and continue until the earlier of (a) expiration or non-renewal of all Subscription Periods, or (b) termination of this Agreement as more fully set forth below. Each Order Form will automatically renew for successive periods equal in length to the expiring Subscription Period, unless one of the Parties gives written notice of termination at least thirty (30) days prior to the expiration of the then-current Subscription Period. The fee for the renewal Subscription Period will be equal to the then-current fee, unless Healthguard has given You at least thirty (30) days’ prior written notice of a fee increase, which shall be effective upon renewal.  The term of this EA and this Agreement shall continue as long as an Order Form referencing this EA remains valid and in effect.  

10. Termination

Either Party may terminate the Agreement, including any applicable Order Form(s), if: (a) the other Party materially breaches the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (b) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.  

If You terminate the Agreement in accordance with this Section due to Healthguard’s uncured material breach, Healthguard will refund You any prepaid fees covering the remainder of the Subscription Period as of the effective date of termination.

If Healthguard terminates this Agreement for Your material breach in accordance with this Section, Healthguard will not refund any amounts that You have already paid and You will be required to pay Healthguard any unpaid fees covering the remainder of the Subscription Period pursuant to all applicable Order Forms.  In no event will termination relieve You of your obligation to pay any fees due or payable to Healthguard for the period prior to the effective date of termination. 

Upon termination, Your right to use the Services and Resources provided by Healthguard will immediately cease, and Healthguard reserves the right to remove or delete any information that You may have on file with Healthguard, including any account or login information.

Sections of the Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.

11. Warranties

We warrant that the Services will perform materially in accordance with the description of the Healthguard Services and Resources as set out on our Websites and this Agreement. For all Service plans, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, (a) excluding planned downtime and (b) Force Majeure Events. We will notify You in advance of any planned downtime which is expected to result in significant downtime. In the event of any breach of Healthguard’s obligations in this Section 13, Healthguard shall, at its own expense (y) use reasonable endeavors to rectify such non-compliance, and if rectification is not reasonably possible (z) replace all the non-conforming parts of the Services and Resources. Healthguard expressly disclaims all warranties of any kind other than those set out in this Agreement.  

Healthguard shall not be responsible for breach of these warranties if caused by: (a) hardware, software or other components which are not part of the Services and Resources; (b) errors or problems caused by or contributed to by hardware, software or other components which are not provided by Healthguard, including any modifications by You or third parties; (c) Your rejection of the implementation of any upgrade, change, hot fix, or similar, which would have prevented the error or problem; (d) errors or problems caused by third parties not acting on behalf of Healthguard, including in respect of changes to Services and Resources; and (e) Your failure to fulfill Your obligations pursuant to this Agreement. If You report an issue to Healthguard’s support services/help-desk and Healthguard, after due investigation, determines that such issue was covered by one of the above exclusions, You shall reimburse Healthguard for Healthguard’s time and resources allocated toward addressing the issue.

12. Healthguard’s Indemnification

Healthguard will indemnify, defend and hold You harmless from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party that Your use of the Services infringes the intellectual property rights of a third party. In no event will Healthguard have any obligations or liability under this section arising from: (a) use of any Services or Resources in a modified form or in combination with materials not furnished by Healthguard; or (b) any content, information or data provided by You, Users or other third parties.

13. Customer’s Indemnification

To the fullest extent permitted by applicable law, You agree to indemnify and hold Healthguard harmless from and against all claims, damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (a) Your breach of the Agreement; (b) any User Content; (c) any activity in which You or Your Users engage in via the Services; and (d) Your violation of any law or the rights of a third party. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under the Agreement. In such event, You shall provide us with such cooperation as is reasonably requested by us.

14. Limitation of Liability

***To the maximum extent permitted by law, in no event will Healthguard, its officers, shareholders, employees, agents, directors, subsidiaries, affiliates, successors, assigns, suppliers, or licensors be liable for any indirect, special, incidental, punitive, exemplary, or consequential damages in connection with this Agreement, regardless of legal theory, without regard to whether Healthguard has been made aware of the possibility of those damages, and even if a remedy fails of its essential purpose.  

Healthguard’s aggregate liability for all claims arising under or in connection with this Agreement shall be limited to the amounts paid by you to Healthguard under this Agreement during the twelve (12) months immediately preceding the last event giving rise to liability.

Nothing in the Agreement removes or limits Healthguard’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence.***

15. Changes to the Services and Service Plans

Healthguard reserves the right to update and modify the Service Plans and the Services and the Resources from time to time by, for example, adding additional features to a Service Plan. Healthguard may automatically migrate You to a new Service Plan for administrative purposes whereby Your access is the same as under the original Service Plan, but with potentially additional features. Any such changes to Services, Resources or Service Plans will not reduce the quality of the Services or negatively impact the use of the Services and Resources, or negatively impact your rights and our obligations during the term of this Agreement.

16. Severability and Waiver

Unless as otherwise stated in the Agreement, should any provision of the Agreement be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreement, and the application of that provision shall be enforced to the extent permitted by law.  Any failure by Healthguard or any third-party beneficiary to enforce the Agreement or any provision thereof shall not waive Healthguard’s or the applicable third-party beneficiary’s right to do so.

17. Governing Law and Venue

This Agreement shall be governed by the laws of Norway, without regard to the conflict of laws or the United Nations Convention on the International Sales of Goods.  Furthermore, any action to enforce the Agreement shall be brought in the courts located in Oslo (Oslo tingrett), Norway. You hereby agree to personal jurisdiction by such courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

18. Assignment

Healthguard may assign this Agreement or any part hereof, and delegate any of its obligations under the Agreement. You may not assign the Agreement or any part thereof, nor transfer or sub-license Your rights under the Agreement, to any third party.

19. Amendments

Healthguard may amend this Agreement from time to time to the extent required to reflect changes to our Services or if required to fulfil Healthguard’s legal obligations, in which case the new Agreement will supersede prior versions. We will provide You with reasonable notice prior to the effective date of any material amendment to this Agreement and Your continued use of the Services following the effective date of any such amendment may be relied upon by Healthguard as Your consent to any such amendment. 

20. Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous agreements in relation to the subject matter of the Agreement, whether written or oral.  This Agreement shall take precedence over any: (a) conflicting terms and conditions received from one of the Parties; and (b) conflicting terms and conditions found in other agreements issued by the Parties that interfere with the subject matters regulated by the Agreement, including but not limited to any purchase order or other order documentation You provide (all such terms or conditions being null and void). Except as otherwise set forth herein, any amendments or variations to the Agreement shall be made in writing and shall be duly authorized by representatives of both Parties.  

21. Definitions

“Administrator” means a Customer-designated User who administers the Services on behalf of Customer to Users.

“Anti-Corruption Laws” means anti-corruption and anti-bribery laws, including, without limitation, the Norwegian Penal Code, the U.S. Foreign Corrupt Practices Act (FCPA), the United Kingdom Bribery Act 2010 (UKBA), the United Kingdom Anti-Terrorism, Crime and Security Act 2001 and other relevant laws and regulations in effect in the various countries in which Healthguard does business.  

“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement and Customer Personal Data. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.

“Controller” shall have the meaning provided to such term pursuant to Data Protection Law.

“Customer” or “You” means the entity purchasing the Healthguard Services and Resources pursuant to an Order Form referencing this EA.

“Customer Personal Data” means all Personal Data which Healthguard processes on behalf of the Customer.

“Data Processing Agreement” or “DPA” means Healthguard’s standard Data Processing Agreement, which regulates the Parties obligations under applicable data protection law.

“Data Protection Law” means the GDPR, and the applicable Norwegian law implementing the GDPR.

“Data Subject” shall have the meaning provided to such term pursuant to Data Protection Law.

“DPA” shall have the same meaning as “Data Processing Agreement”. 

“EU Data” means Customer Personal Data protected by EU Data Protection Laws.

“Fee(s)” means the fee(s) payable by Customer for its Service Plan as set out in the Order Form.

“Force Majeure Event” means any circumstances beyond Healthguard’s reasonable control, including, but not limited to, an act of God, governmental action, flood, fire, earthquake, civil unrest, act of terror, strike, Internet service provider failure or delay, and denial-of-service attacks.

“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

“Healthguard” means Healthguard Systems AS acting as the provider of the Services and Resources under this Agreement. 

“Healthguard Brands” means all Healthguard trademarks, service marks, trade names, logos, domain names, and any other features of the Healthguard brand.

“License” means the worldwide, limited, non-exclusive, non-transferable, non-sublicensable and revocable license to make use of the Healthguard Services for commercial, educational and/or entertainment use of the Service granted to You pursuant to this Agreement’s Section 1 and as further detailed in the Order Form.  

“New Sub-Processor” means any Sub-Processors engaged by the Healthguard after the effective date of the Agreement.

“Order Form” means the ordering document setting forth the subscription to the Service Plan selected by Customer.   

“Party” or “Parties” means Healthguard and the Customer as parties to this Agreement.

“Personal Data” shall have the meaning provided to such term pursuant to Data Protection Law.

“Personal Data Breach” shall have the meaning provided to such term pursuant to Data Protection Law.

“Processor” shall have the meaning provided to such term pursuant to Data Protection Law.

“SCC” means the European Commission’s standard contractual clauses for data transfers between EU and non-EU countries.

“User License(s)” means the number of specifically named individual user licenses the Customer has acquired for the respective Services.

“Service(s)” or the “Healthguard Service(s)” means the SaaS-services provided by Healthguard and subscribed to by the Customer under this Agreement and as set out in the Order Form.

“Service Plan” means the service plan applicable to the Services to which Customer has subscribed as set out in Order Form.

“Sub-Processor” means an entity to which Healthguard subcontracts its processing of the Customer Personal Data to.

“Subscription Period(s)” means the period for which Customer is granted a license to use the Healthguard Services as agreed by the Parties in the Order Form.

“Supervisory Authority” shall have the meaning provided to such term pursuant to Data Protection Law.

“Third-Party Application(s)” means the third-party applications, websites and services that are integrated in the Services and Resources in order to make certain features, content, products and/or services available to You. 

“Resource(s)” means the information, resources, services, products, and tools provided, either directly or indirectly, by Healthguard to the Customer as part of this Agreement (including any other content and materials available on Healthguard.com, create.Healthguard.it, play.Healthguard.it and Healthguard.it, as well as text, graphics, website name, code, images and logos).

“User” means an individual who has access to a Healthguard enabled Service account on behalf of the Customer.

“User Content” means the content and data that Users upload to the Service, including without limitation registrations, documents,, text, messages, information, user feedback and any other content.

“Website(s)” means the Healthguard websites includingHealthguard.systems, Healthguard.no.