GENERAL CONTRACT TERMS
ACCEPTANCE OF THESE TERMS – THE RECIPIENT OF THESE TERMS AND CONDITIONS MUST READ THE FOLLOWING: If the Customer (as defined below) or any other recipient of these General Contract Terms and Conditions does not accept all or parts of the terms and conditions, or does not accept that the terms and conditions will govern deliveries from the Supplier (as defined below), the Supplier must be notified in writing, immediately or at the latest at the commence- ment of the deliveries. If such notice is not received, the Supplier will act as if the terms and conditions have been accepted, and will consider that an agreement has been entered into on the basis of these terms and conditions.
The following General Contract Terms and Conditions form part of and govern the Agreement entered into between the Customer, as defined below, and the Supplier, as defined below:
1. DEFINITIONS
The following definitions shall apply in the Agreement:
Agreement shall mean these General Contract Terms and Conditions and other contract terms and conditions including any attachments, schedules or appendices which describe the performance, obligations and rights of the parties.
Contract Price shall mean the consideration payable by the Customer for the Delivery.
Customer shall mean the recipient of these General Contract Terms and Conditions or the party which is stated to be the Customer elsewhere in the Agreement, such as the front page of the contract, or in any appendices included in the Agree- ment.
Supplier is Lily AS unless a different company is explicitly stated in the Agreement.
Delivery shall mean the performance that the Supplier is to provide to the Customer according to the Agreement.
Third-Party shall mean any party other than the Supplier (including its sub-contractors) and the Customer, unless oth- erwise clearly evident from the context.
2. ABOUT THE AGREEMENT
These General Contract Terms governs the general contract terms such as delivery, changes, compensation, delays, failure, confidentiality, choice of law, disputes, etc. Any deviation from these terms shall be explicitly agreed upon between the parties in writing.
In the case of conflict of interpretation between different pro- visions of the Agreement, the following priority shall apply:
a) Any written amendments and/or supplementary agree- ment to the Agreement signed by an authorized person
b) Any other contractual provisions that are part of the Agreement, including any framework agreement or main agreement
c) These General Contract Terms.
3. SCOPE OF DELIVERY
The Delivery includes the functionality and the services de- scribed in the Agreement at the time the Agreement was en- tered into. After this time, any new functionality and other services will be offered in return for additional payment. The parties shall make their best efforts to collaborate on produc- ing a revised description of the Delivery. The joint description shall take precedence over any description of or requirements for the delivery made by the Customer.
4. TIME OF DELIVERY
Unless any specific acceptance criteria are agreed, delivery shall be regarded as having taken place on:
a) Handover to the Customer or a Third Party provider of transport services, such as a mail service or a forwarding agent, or to a provider of data communication lines,
b) start of use of the Delivery,
c) the establishment of the Customer’s connection to the agreed communication point where the Supplier has made the Delivery available, or
d) the successful completion of any agreed tests or trials of the Delivery.
The Customer may only refuse acceptance of the Delivery if there are faults or errors that cause, at a minimum, complete system failure, substantial amounts of data are lost or other (objectively) critical functions cease to function or fail. The Customer may not refuse acceptance if there are faults or errors which are not to be considered substantial or critical, or where there is a workaround.
5. LANGUAGE
The documentation provided by the Supplier, and communica- tion with the Supplier, may be in English, Norwegian, Swedish and/or Danish.
6. USE OF SUB-CONTRACTORS, RELATIONSHIPS TO THIRD PARTIES
6.1. Use of sub-contractors
The parties may use sub-contractors for all or parts of their contractual obligations, including the transfer of personal data for storage and processing to sub-contractors, cf. Section 17. The use of sub-contractors shall not affect the party’s contrac- tual responsibility pursuant to this Agreement towards the other party, including requirements for security, documenta- tion, confidentiality, right of access to information etc.
6.2. Co-operation with Third Parties
The parties shall co-operate with Third Parties to the extent this is required for the duties of the parties under the Agree- ment. A party is relieved from such co-operation if it becomes apparent that the co-operation may result in substantial disad- vantage for the party. The scale of co-operation with Third Parties shall be agreed upon prior to commencing the co-oper- ation and is to be invoiced in accordance with the rates that apply at the time.
6.3. Other services by Third Parties
The Supplier has no responsibility or liability for other ser- vices performed by Third Parties unless the parties explicitly agree that the Supplier shall deliver or accept liability for such services.
Installation and configuration of the Delivery by a Third Party, or configuration services performed by a Third Party, shall take place only according to instructions from the Supplier. The Customer is liable for any damage or loss caused by non- compliance with this provision.
7. BREACH OF CONTRACT 7.1. Notifications and complaints
If either party has reason to believe that its duties or obliga- tions hereunder will not be performed in accordance with the Agreement, that party shall notify the other party within the time limits and in the manner agreed.
If the Customer chooses to continue with the Delivery despite the delay, the Supplier shall be subject to a new deadline of the time it has notified the Customer that delivery will take place (extended deadline). If the Customer does not within 10 business days of receipt of the information on the revised Delivery date object in writing to the expected Time of Deliv- ery, the extended deadline shall be regarded as accepted.
7.2. Complaints/notice of objection
Unless otherwise agreed in writing, the parties must issue written notice of complaint regarding any claim of breach of contract (delay/defect) without undue delay, and at the latest within three months from the time when the cause of the breach was discovered or should have been discovered. In assessing whether the party in question should have discov- ered the cause, particular emphasis shall be placed on whether the party would have discovered it through normal control routines.
Notwithstanding the above requirements, a notice of com- plaint must be issued at the latest 12 months after the cause of the breach of contract arose. However, the preceding sentence will not prevent either party from pursuing a claim for breach of contract if the other party was aware that there were grounds for such complaint.
If one of the parties issues a notice of complaint regarding a defect or other circumstance that the other party must investi- gate through examination, fault localization, or otherwise, and it is established that no defect or other circumstance for which the notified party is responsible exists, the notified party is entitled to claim compensation for work and other expenses caused by the unfounded notice of complaint, in accordance with its current rates.
7.3. Breach of contract on the part of the Supplier
7.3.1. Delay
A delay exists if the Delivery takes place in whole or part later than the agreed delivery date, and this is caused by circum- stances for which the Supplier is responsible.
If the delay represents a material breach of contract, the Cus- tomer may terminate the Agreement related to the part of the Delivery that cannot be taken into use by giving 30 calendar days written notice, and/or claim damages in accordance with Section 10 if the conditions therein are met.
7.3.2. Defects
A defect exists if the Delivery does not fulfil the requirements specified in the Agreement.
The Supplier is obliged and entitled to remedy all defects that are identified by the Customer’s testing within a reasonable time, and at the latest within three months from the time of Delivery, at no extra cost to the Customer. Remedies may consist of rectification, replacement or additional delivery. If the parties have entered into operations- or maintenance agreement that includes fault rectification, the said agreement shall prevail.
To the extent Customer participation is necessary, the Supplier may require the Customer to contribute to the remedying of the defects. If the defect is caused by the Supplier, the Cus- tomer may claim reasonable compensation for its direct ex- penses in this connection from the Supplier.
The Supplier’s liability for defects shall not include defects caused by circumstances arising after Delivery, and that arise as a result of circumstances for which the Customer carries the risk, such as:
a) erroneous use or use in breach of contract by the Cus- tomer or someone for whom it is responsible,
b) inadequate internal employee training in the use of the Delivery by the Customer,
c) failure to follow instructions, guidelines, recommenda- tions and requirements from the Supplier as specified in Section 7,
d) defective maintenance for which the customer is respon- sible, or
e) normal wear and tear/deterioration.
7.3.3. Price discounts
If despite repeated attempts, the Supplier does not succeed in rectifying a defect within a reasonable time period, the Cus- tomer may claim a proportional price discount based on the relative reduction in value between the agreed Delivery and what was actually delivered.
If the defective Delivery is subject to a specific Service Level Agreement by which a financial credit system is agreed, the Customer cannot demand a separate price discount. This shall apply irrespective of whether the defect in question forms the basis for compensation for a shortfall in the service level.
7.3.4. Service Level Agreement (SLA)
The parties may, as part of the Agreement, establish a Service Level Agreement (SLA).
In the event of defects in deliveries which are subject to an SLA, the Customer shall be entitled to compensation accord- ing to the terms of the SLA. Claims for compensation accord- ing to the SLA are not conditional upon negligence on the part of the Supplier, or upon documented loss on the part of the Customer. If a breach of the SLA is caused by a party other than the Supplier or a party for which the Supplier is respon- sible, no compensation can be claimed. If one incident causes deviation from more than one SLA indicator, the Customer is only entitled to compensation for the SLA indicator which gives the Customer the highest compensation.
7.3.5. Termination and damages
In the event of a material defect that has not been remedied in accordance with Section 8.3.2, the Customer may, instead of a price discount, give 30 calendar days’ written notice to termi- nate the Agreement and claim compensatory damages in ac- cordance with Section 10, provided the conditions therein have been met. If by the end of the deadline the defect has been remedied to the extent that it is no longer material, the Customer may not terminate the Agreement.
7.3.6. Sole remedy
The provisions of Section 8.3 and 10, and the provisions agreed in any separate Service Level Agreement which is part of the Agreement, comprise the Customer’s sole remedy in respect of defects in the Supplier’s Delivery.
7.3.7. Compensated withdrawal
If Delivery has not taken place and further fulfilment would be disproportionately burdensome, the Supplier may elect to compensate the Customer for its direct costs and losses in- stead of completing the Delivery.
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7.4. Breach of contract on the part of the Customer
7.4.1. Change of Delivery date
The Customer is obliged to collaborate in the performance of the Delivery in a timely and competent manner, and as stipu- lated in the Agreement. Any failure to provide such collabora- tion that affects the delivery time or quality of the Delivery, shall entitle the Supplier to change the Delivery date and/or the consideration for the Delivery so that it reflects the breach by the Customer. the Supplier may also claim damages ac- cording to Section 10.
7.4.2. Termination and compensatory damages
If the Customer commits a material breach of its obligations under the Agreement, the Supplier is entitled to terminate the Agreement by giving 30 calendar days written notice, and shall be entitled to claim damages according to Section 10 provided its conditions are met. Late payment exceeding 30 days shall be considered as a material breach. Upon repeated- ly late payments, the Supplier may require sufficient security for payment for further deliverances under the Agreement.
8. EFFECT OF TERMINATION
Upon the effective date of termination of the Agreement, the parties rights and obligations are revoked. If the Agreement has been fulfilled in whole or in part, the Supplier shall be reimbursed for the work it has carried out, and the parties shall to the extent possible return services received that are in excess of such reimbursement.
In the case of termination of ongoing services, each party’s duties under the Agreement are repealed and there is no return of received services.
Termination has no effect on the contractual terms relating to confidentiality, dispute resolution or the parties’ rights and duties resulting from the termination.
9. DAMAGES
9.1. Grounds for liability
The aggrieved party may claim compensation for document- ed, direct losses it has suffered due to negligence by the other party. Costs may not be claimed from the Supplier for correc- tion or improvement by reconstruction of data if such actions substantially exceed the significance of the data and the data can be restored or recreated by easier or less costly means than reconstruction.
9.2. Scope of liability
Unless otherwise agreed, the total liability of each of the par- ties is limited to 50% of the total annual Contract Price ex- cluding value-added tax for the services the breach of contract comprises.
The above limitations do not apply, however, if it can be es- tablished that the party causing the damage has shown wilful misconduct or gross negligence.
9.3. Indirect losses
The parties are under no circumstance liable for indirect loss, including operating loss, loss of earnings, loss on the part of a Third Party or any other consequential damages.
9.4. Other sanctions’ effect on compensation
Any other sanctions either paid or calculated shall be deducted from any damages awarded or credited under this Section 10.
9.5. Sole remedy
The parties shall not be liable for any damages other than as specified in this Section 10.
10. PAYMENT AND PAYMENT TERMS 10.1. Stipulated prices
All prices in the Agreement are stated excluding value-added tax. The effects of a change in such official duties and/or changes in the way the authorities apply legislation and regu- lations in respect of such duties will be charged to the Cus- tomer.
The Contract Price does not include expenses for travel, board and lodging and similar expenses.
Services based on hours shall be invoiced in the month fol- lowing the month in which the services are provided. Other deliveries provided under the terms of the Agreement, includ- ing ongoing services, are invoiced 12 months in advance if nothing else is agreed on.
10.2. Price adjustments
Unless otherwise agreed in writing, all prices in the Agree- ment shall be adjusted annually in accordance with changes to Statistics Norway’s consumer price index and the index for hourly-based IT consultancy services.
In the event of changes in foreign currency rates of exchange that affect the costs incurred by the Supplier in performing the Delivery, the Supplier shall be entitled to adjust the relevant prices by giving one month’s written notice.
10.3. Security for payment
The Supplier holds hardware and software purchased by the Customer as security for any outstanding amounts and interest according to the rules in the Mortgage Act. The Customer acknowledges that, in accordance with the Mortgage Act, such items cannot be resold or pledged as collateral to third parties until the purchase amount has been paid in full.
10.4. Due dates
The Customer undertakes to pay within 21 calendar days of the invoice date.
If payment is late, the Customer shall pay interest on the overdue payment in accordance with the Act relating to Inter- est on Overdue Payments of 17 December 1976 no. 100 (Forsinkelsesrenteloven).
11. USER LICENCE FOR SOFTWARE AND DOCU- MENTATION
11.1. Right of use – licence grant
When the Delivery includes software and/or documentation produced by the Supplier, the Customer acquires a limited and non-transferable licence for the software (including associated documentation) for the Customer’s internal use within its organization as it appeared and was specified when the Agreement was entered into. The Customer’s licence accord- ing to this provision is effective from delivery, as defined in Section 4, and until the Agreement is terminated, regardless of the reason for the termination.
Any expansion in the scope of the licence shall be agreed in writing in advance. The licence covers normal use of the De- livery at the Customer’s premises or other agreed location.
The Customer acquires no rights to software or functionality through its use thereof. If the Customer knowingly takes such software or functionality into use without prior written agree- ment, the Supplier is entitled to charge the Customer accord- ing to applicable rates for such software or functionality.
11.2. Third-Party software
It may be necessary to use Third Party software in order to use the Delivery. Unless provision is made for this in the Agree- ment, the Customer is responsible for entering into the neces- sary agreements with relevant suppliers for Third-Party soft- ware or other services that are not provided by the Supplier
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but are required to make use of the Delivery. The Customer is also solely responsible for all obligations associated with such Third Party software and services. the Supplier shall based on information from the Customer and to the extent this may reasonably be expected, inform the Customer before Delivery about which Third-Party software is involved.
If a fault in Third-Party software for which the Customer is responsible affects the functionality or availability of the De- livery, the Customer is responsible for ensuring that the fault is rectified by the Third Party. the Supplier‘s liability for the software’s functionality shall cease until any such fault has been rectified by the Third Party and implemented by the Customer.
If the Supplier is requested by the Customer to enter into an agreement with a Third Party regarding software or services for the Customer, the Supplier shall not be responsible for faults or lack of functionality in Third Party software or ser- vices. The Customer may not make use of Third-Party soft- ware that is delivered by the Supplier until the software is invoiced by the Supplier. The Customer must comply with any licence terms which govern the Third-Party software.
11.3. Purpose
Unless otherwise agreed in writing, or where it is clearly ap- parent from the objective of the Agreement or the nature of the software, the Customer may use the software only for data processing for its own purposes. Data processing for third parties may be only be undertaken with the Supplier’s written agreement.
12. INTELLECTUAL PROPERTY RIGHTS
This Agreement does not transfer any rights in respect of copyright, databases or other intellectual property rights. This restriction also applies to but is not limited to, systems, soft- ware, specifications, user documentation, formats, technical and user interfaces, technology, “know-how” and other mat- ters related to the systems or that are developed in accordance with the Agreement.
Upon payment in full of the Contract Price, the Customer acquires a perpetual, non-exclusive right to use the results of the Agreement within its own business without further pay- ment. Access to source code requires a separate agreement between the parties.
If the Supplier performs work on software to which the Cus- tomer holds the intellectual property rights, the Customer shall be entitled to all rights to the results of such work.
13. ACCESS TO AND USE OF DATA
The Customer owns the data created by the Customer or data to which it has otherwise gained the relevant right. The struc- tures in which the data is presented are the Supplier’s proper- ty. If specifically agreed, the Customer may have read and/or write access to the data. If such access is granted, the Suppli- er’s responsibility with regard to service levels (SLA) will lapse.
The Supplier is entitled to use the Customer’s data for test or demonstration purposes within the limitations stipulated by law.
The Supplier may access the Customer’s data on a ”need-to- know” basis in order to fulfil its obligations under the Agree- ment, including its obligations in respect of support duties, fault correction and problem-solving.
14. PROCESSING OF PERSONAL DATA
If the Agreement includes processing of personal data, the Customer is considered to be the Data Controller and the Sup- plier is considered to be the Data Processor pursuant to the regulation on processing of personal data. In such a case, the
Supplier’s standard Data Processing Agreement shall be en- tered into. The Customer is responsible for ensuring a suffi- cient legal basis for processing personal data.
15. CONFIDENTIALITY 1. Duty of confidentiality
The parties and their directors, officers and employees shall maintain confidentiality regarding circumstances with the other party of which they become aware as a result of the Agreement (confidential information). The duty of confiden- tiality shall also be observed in any fault situations. Each of the parties has the responsibility for any incorrect information.
Both parties, and others for whom they are responsible, are obliged to maintain the secrecy of confidential information, including but not limited to:
a) Not communicating or in any other way disclosing such information to a Third Party,
b) treating such information with due diligence, and observ- ing the obligation of non-disclosure concerning systems and the operational set-up, as well as documentation regarding the Delivery unless otherwise agreed in writ- ing,
c) protecting information about the content of this Agree- ment and other information that is obviously of a confi- dential nature, or information that may damage or cause inconvenience to either of the parties if it becomes known,
d) ensuring that the necessary precautions in relation to employees and others are taken so that the confidential nature of the information is not placed at risk,
e) remaining silent about anyone’s personal circumstances, and
f) limiting the access of persons to information of a confi- dential nature in scope and level of detail, based on the need for the person in question to be able to perform services as instructed or agreed (the «need-to-know» principle).
15.1. Declaration of confidentiality
Each of the parties shall ensure that people who in their work or in any other way obtain knowledge about confidential in- formation sign a declaration of confidentiality.
16. EXTENDED USE AND CHANGE OF PARTY 16.1. Extended use etc.
Should the Customer merge with or otherwise become part of another company or group of companies, or make acquisitions of portfolios, etc., and such an event results in extended use of the Delivery or access to new software, a supplementary agreement on price and performance shall be entered into, taking into account the extended use or right of use (licence). No extension of the licence conferred by this Agreement shall become effective until the aforementioned supplementary agreement has been entered into.
16.2. Change of party
The parties may only assign their rights and obligations under the Agreement to another party with the written consent of the other party to the Agreement. Such consent may not be denied without due and reasonable cause. No such consent shall be required for transfers to other companies in the same group.
16.3. Transfer of the right to payment
The right to payment under the Agreement may be freely as- signed. Such assignment does not release the party in question from its obligations and responsibility according to the
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Agreement.
17. CHANGES AND ADDITIONS
If one party requests an amendment or addition to the Agree- ment (hereinafter a “Change”) or an amendment or addition is necessary for other reasons, the following procedure shall be followed:
a) Request for the Change shall be forwarded to or made by the Supplier in writing.
b) If the request is made by the Customer, and the Supplier accepts the request, the Supplier shall prepare a changing scope comprising at a minimum a description of the Change, the effect of the Change on the Contract Price, the effect on schedule and completion date, and the final date for the Customer to accept the changing scope.
c) If the Change and effect of the Change cannot be de- scribed as stipulated in item b) above, the Change and it is effects must be reviewed further. In such a case, the changing scope must comprise a description of the re- view, costs and remuneration for the review, time frame for the review, any effect the review might have on schedule/completion date under the Agreement, and final date for the Customer to accept the changing scope after the review.
d) The Customer may at its own discretion accept or reject the changing scope of the change review by signing and return the changing scope to the Supplier within the stat- ed date.
If the Customer requests a Change in a way other than as de- scribed above, and the Supplier carries out the Change, the Supplier shall nevertheless be entitled to remuneration in ac- cordance with its current rates at the time.
The provisions in this Section 21 do not entitle either party to demand a change.
18. FORCE MAJEURE
In the event of circumstances which are not within a party’s control and which a party may not have foreseen when the Agreement was entered into, and which the party may reason- ably not be expected to overcome or prevent the consequences of, the parties’ rights and duties are suspended for the duration of such event. Such events include strikes, lock-outs, pandem- ic, war, cable rupture, fire, water damage, acts of terror, break down of communications or similar. This shall also apply if such circumstances affect the party’s subcontractors.
The party invoking force majeure under this provision shall give the other party promptly, written notice.
In the case of force majeure, each party shall cover its own costs related to the force majeure situation.
In case of force majeure, this Agreement cannot be terminated without the consent of the party affected by force majeure unless the situation is on such a scale or duration that it is self- evidently unreasonable for the parties to continue to be bound by the Agreement.
19. REGULATIONS AND GOVERNMENT RE- QUIREMENTS
The parties shall keep themselves informed about, and comply with, applicable Norwegian laws and regulations. This shall also apply to official rulings and instructions that affect either of the parties.
In the event of changes to laws and regulations, or official rulings and instructions, which have an impact on one of the party’s businesses which may imply that changes must be made to software or systems or in the Delivery in other re-
spects, the other party shall be notified and the Supplier shall prepare a proposal for a solution and a binding offer for im- plementation of the change, at an additional charge.
20. TERM, TERMINATION
Unless otherwise agreed in the Agreement, the Agreement is valid for 12 months. The duration of the Agreement shall thereafter be extended automatically by 12 months if not ter- minated in writing by one of the parties giving at least three months’ written notice prior to the annual anniversary.
The Supplier undertakes to assist the Customer on the transi- tion of the services to another supplier upon termination. The Supplier shall be entitled to invoice time and material, use of hardware, processing resources, etc. as agreed for such as- sistance. Upon termination of the Agreement, the Supplier shall store the Customer’s data for six months. If the Cus- tomer has not entered into an agreement with the Supplier on storage or transfer of data within the said period of six months, the Supplier may delete the data without further no- tice. The Supplier shall be entitled to claim additional consid- eration for storage or transfer of the data in the said period. The Customer is obliged to make resources available from its own organization and from any other supplier to support the Supplier in the said assistance.
The Supplier shall not be responsible for the outcome of the transition of the services under the Agreement to another sup- plier. The Supplier shall not be under any obligation to trans- fer rights, IPR or rights to documentation or to give any third party (such as a competitor of the Supplier) access to such rights, documentation or know-how. If it is agreed that a third party shall have access to information, data etc. is it a precon- dition that such access is governed by a separate agreement (with confidentiality provisions).
21. REFERENCE
The Supplier may use the Customer as a reference, including using the Customer’s corporate logo and visual identity in marketing. The Supplier shall have the right to place a distinc- tive Supplier’s logo with associated brief text on the Delivery in a clear manner.
22. CHOICE OF LAW AND DISPUTES
The parties’ rights and duties according to the Agreement are governed by Norwegian law.
If any disputes occur between the parties with regard to the interpretation of the consequences of the Agreement, the par- ties shall try to solve the disputes by negotiation. If a dispute is not resolved by negotiations within one month, each party may initiate legal proceedings before the ordinary courts of Norway for a final decision.
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