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:
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 subcontractors) and the Customer, unless otherwise clearly evident from the context.
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:
The Delivery includes the functionality and the services de- scribed in the Agreement at the time the Agreement was entered 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.
Unless any specific acceptance criteria are agreed, delivery shall be regarded as having taken place on:
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.
The documentation provided by the Supplier, and communication with the Supplier, may be in English, Norwegian, Swedish and/or Danish.
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 contractual responsibility pursuant to this Agreement towards the other party, including requirements for security, documentation, confidentiality, right of access to information etc.
The parties shall cooperate 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 cooperation may result in substantial disad- vantage for the party. The scale of cooperation with Third Parties shall be agreed upon prior to commencing the cooperation and is to be invoiced in accordance with the rates that apply at the time.
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.
If either party has reason to believe that its duties or obligations 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 Delivery, the extended deadline shall be regarded as accepted.
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 discovered 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 a 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.
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 Customer 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.
A defect exists if the Delivery does not fulfill 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 Customer may claim reasonable compensation for its direct expenses 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:
If despite repeated attempts, the Supplier does not succeed in rectifying a defect within a reasonable time period, the Customer 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.
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 responsible, 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.
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.
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.
If Delivery has not taken place and further fulfillment would be disproportionately burdensome, the Supplier may elect to compensate the customer for its direct costs and losses instead of completing the delivery.
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.
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.
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.
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 correction 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.
Unless otherwise agreed, the total liability of each of the par- ties is limited to 50% of the total annual Contract Price excluding value-added tax for the services the breach of contract comprises.
The above limitations do not apply, however, if it can be established that the party causing the damage has shown wilful misconduct or gross negligence.
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.
Any other sanctions either paid or calculated shall be deducted from any damages awarded or credited under this Section 10.
The parties shall not be liable for any damages other than as specified in this Section 10.
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 Customer. 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 in advance.
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.
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).
When the Delivery includes software and/or documentation produced by the Supplier, the Customer acquires a limited and non-transferable license 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 license 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 license shall be agreed in writing in advance. The license 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.
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 necessary agreements with relevant suppliers for Third-Party soft- ware or other services that are not provided by the Supplier 3 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 license terms which govern the Third-Party software.
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.
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 Customer holds the intellectual property rights, the Customer shall be entitled to all rights to the results of such work.
The Customer owns the data created by the Customer or data to which it has otherwise gained the relevant right. The structures 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 fulfill its obligations under the Agree- ment, including its obligations in respect of support duties, fault correction and problem-solving.
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 entered into. The Customer is responsible for ensuring a sufficient legal basis for processing personal data.
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 confidentiality 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:
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.
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 (license). No extension of the license 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
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:
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.
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.
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.
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 transition 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 Customer 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 consideration 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).
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 distinctive Supplier’s logo with associated brief text on the Delivery in a clear manner.
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.