DNI Standard Terms and Conditions for IT Services (annex to Service Agreement)
ON ENTERING INTO THE TERMS AND CONDITIONS – RECIPIENTS OF THE STANDARD TERMS AND CONDITIONS MUST READ THIS: If the Customer (as defined in the Service Agreement) or the recipient of these terms and conditions (“Terms”) does not accept all or part of the Terms and Conditions, or does not wish them to be based on DotNet Internals AS (DNI), DNI must be notified in writing, immediately and at the latest before services are started. If this is not done, DNI will act as if the Terms and Conditions have been accepted and that an agreement has been entered into based on the Terms and Conditions.
The following Terms and Conditions form part of and govern the agreement entered into between the Customer and DNI:
1. DEFINITIONS
The following definitions apply in the Agreement:
The Agreement shall be understood as these Terms and Conditions and any other terms and conditions as well as appendices/appendices that describe the benefits of and the rights and obligations of the parties.
Contract price(s) means the consideration to be paid by the Customer for the individual parts of the services under the Agreement.
The Customer is the recipient of these Terms and Conditions or the person who appears as the Customer in other contract terms, agreement cover page or appendices included in the Agreement.
The Provider is DotNet Internals AS (referred to as DNI or the Provider) unless otherwise explicitly stated in the Agreement.
Delivery(s) means the combined services that DNI shall deliver to the Customer as specified in the Agreement.
Software means computer programs with associated documentation to which DNI shall provide or make available to Customer as specified in the Contract and which are not covered by Third Party Software.
Third Party or Third Party Provider means anyone other than DNI with subcontractors and the Customer, unless otherwise clearly stated in the context.
Third Party Software means software with associated documentation in respect of which the Third Party has intellectual property rights (copyright, patent, etc.).
2. ABOUT THE AGREEMENT
These Terms and Conditions govern general contractual matters such as indemnity, change management, delay, defect, confidentiality and dispute resolution. Any deviation from these terms will only apply if explicitly stated in the Agreement.
In the event of any conflict between provisions of the Agreement, the following priority shall prevail:
a) Any written amendments and/or additional agreement to the Agreement signed by an authorized person
b) Any other contractual provisions in the Agreement, including framework agreements or overlying agreements
c) These general terms and conditions for IT services
d) Other attachments or appendices to the Agreement.
3. DNI’S SERVICES
DNI shall provide professional assistance in collaboration with the Customer. The work shall be carried out under the Customer’s responsibility and control, where the Customer is also responsible for the result. The delivery includes the functionality and services described in the Agreement at the time of conclusion of the agreement. After this time, new functionality and other services shall be offered for additional consideration. The parties shall seek to prepare an agreed description of the Delivery.
4. DELIVERY AND WARRANTY PERIOD
4.1 Delivery
Unless specific approval criteria have been established as conditions for delivery, delivery is deemed to have occurred by either:
a) Handover to the Customer or Third Party Provider of transport or transfer services such as a provider of communications services or the Norwegian Post Office,
b) Commencement of use of the Delivery,
c) The Customer’s connection to the agreed communication point where DNI has made the Delivery available, or
d) Upon successful completion of agreed tests or samples of the Delivery.
4.2 Warranty period
The warranty period begins after delivery. Unless otherwise agreed, the warranty period runs from delivery for a duration of 3 weeks during which error correction and corrections are made free of charge.
If the customer chooses to deviate from DNI’s recommendations, the warranty is partially or completely void. After the warranty period, any error situations are reported through a support agreement. General system errors will be updated in accordance with DNI’s current development process.
The customer may only refuse to approve the Delivery if there are errors that at least result in complete system shutdown, significant data being lost or other critical functions (after objective assessment) stopping or failing. The customer may not refuse approval if there are errors that are not considered to be significant or critical, or that can be circumvented.
5. LANGUAGE
Documentation and communication between DNI and the customer may be in Norwegian or English.
6. USE OF SUB-CONTRACTORS AND RELATIONSHIPS WITH THIRD PARTIES
6.1 Use of subcontractors
The parties may have all or part of their contractual obligations performed by subcontractors, including transferring personal data for storage or processing of personal data to subcontractors, cf. clause 15. The use of subcontractors does not change the parties’ responsibilities under the Agreement, including requirements for security, documentation, confidentiality, right of access, etc. with the exceptions that follow from the Terms.
6.2 DNI’s liability for Third Party and Subcontractor Deliveries
To the extent that software from Third Parties, including subcontractors from DNI, is included in the services from DNI, this is stated in DNI’s Data Processing Agreement. Third party terms and conditions are binding on the Customer.
DNI is not liable to the Customer for errors in deliveries from Third Parties or subcontractors that occur. This means that the Customer cannot claim non-compliance with agreed quality requirements, including requirements for service level, if this is due to deliveries from Third Parties or subcontractors. This also applies to the loss or destruction of data. The limitations of liability in this section do not apply if DNI could have limited the scope and/or consequences of such errors, but the general limitations of liability in Section 9 below apply in any event.
In the event of errors in deliveries from Third Parties or subcontractors, DNI shall, to the extent possible and appropriate, report the error to the third party, justify to the Customer why DNI could not or should not have limited the scope and/or consequences of such errors and – if deemed necessary and reasonable – keep the Customer informed of the status of the error correction. DNI has no responsibility for other services provided by Third Parties, unless it has been specifically agreed that DNI shall deliver or take responsibility for the services in question.
6.3 Cooperation with Third Parties
The Parties are obliged to cooperate with Third Parties to the extent necessary for the performance of obligations under the Agreement, unless it is probable that such cooperation will entail a material disadvantage. The scope of such assistance is agreed upon in more detail before the assistance is relevant and is invoiced in accordance with the rates in force at the time.
6.4 Other services
Installation and configuration of the Delivery performed by others than DNI shall only take place according to instructions from DNI. Deviations from this exempt DNI from any liability for the Delivery.
7. DEFAULT
7.1 Notification and complaint
7.1.1 Notification of delay
If one of the parties has reason to believe that its performance cannot be made on time, the party shall notify the other party within the deadlines and in the manner agreed between the parties. If the Customer chooses to maintain the delivery despite the delay, DNI has a deadline until the time when DNI has informed that delivery will be possible (additional deadline). If the Customer does not provide a written response within 10 business days of receipt of such written notification of the delay, the additional deadline shall be deemed to have been accepted.
7.2 Complaints
Unless otherwise agreed in writing, the parties must submit any claims for breach of contract (delay/deficiency) in writing without undue delay after the cause that provides grounds for a claim for breach of contract has been discovered or should have been discovered. When assessing whether the parties should have discovered the matter, particular emphasis shall be placed on whether the party would have discovered it through normal inspection routines. A party’s claim for breach of contract does not, however, lapse if the other party knew that there was a reason for a complaint.
If one of the parties makes a complaint on the basis of a defect or other matter that the other party must follow up on by means of investigations, troubleshooting or otherwise, and it turns out that there is no defect or other matter for which the notified party is responsible, the notified party has the right to claim compensation for work and other costs in connection with the groundless complaint, according to the applicable rates.
7.3 DNI’s default
7.3.1 Delay
A delay exists if delivery occurs later than the agreed delivery time at any time and this is due to circumstances for which DNI is responsible.
If the delay involves a material breach, the Customer may terminate the Agreement with 30 days’ written notice and claim compensation under clause 9 if the conditions for this are met.
7.3.2 Defects
A defect exists if the Delivery on delivery does not meet the requirements of the Agreement.
DNI has the duty and the right to remedy defects that are uncovered by the customer’s test within a reasonable time. Rectification can take place by repair, replacement or additional delivery.
To the extent that the Customer’s participation is required, DNI may require the Customer to contribute to remedial action. DNI’s liability for defects does not include defects that arise from conditions that arise after delivery and are a consequence of circumstances that the customer has the risk of, including:
a) the Customer’s - or anyone for whom it is responsible - its improper or contractual use;
b) inadequate self-training in the use of the Delivery,
c) inadequate maintenance on the part of the Customer, and
d) normal wear and tear/deterioration.
7.3.3 Price reduction
If, despite repeated attempts, DNI has not succeeded in remedying a defect within a reasonable time, the Customer may demand a proportionate price reduction based on the relative decrease in value between the agreed delivery and the actual delivery.
If the defective performance is covered by service level agreements (SLAs), the Customer may not demand a price reduction. This applies regardless of whether the defect in question provides grounds for compensation for a lack of service level agreements (SLAs).
7.3.4 Service Level Agreement (SLA)
The parties may establish service level agreement (SLA) requirements as part of the Agreement.
In the event of inadequate delivery of ongoing services covered by the service level agreement, the Customer may claim compensation for deviations from annual support of operations in the support agreement. A claim for compensation for deviations does not require fault on the part of DNI or documented loss on the part of the Customer. If a breach of the service level agreement is caused by someone other than DNI or those for whom DNI is responsible, compensation for deviations cannot be claimed. If an incident results in deviations from multiple requirements, compensation can only be claimed for the service level that provides the highest compensation.
7.3.5 Remedies
What is set out in clause 7.3 and clause 9, as well as in any separate service level agreement (SLA) that is part of the Agreement, are the Customer’s only remedies in the event of default.
7.4 Customer default
7.4.1 Change of delivery time
If the Customer breaches its obligations under the Agreement and this affects the progress or quality of DNI’s delivery, DNI has the right to change the delivery time and/or payment for the delivery to reflect the Customer’s breach. DNI may also claim compensation under clause 9.
7.4.2 Termination and compensation
If the Customer materially breaches its obligations under the Agreement, DNI may terminate the Agreement with 30 calendar days’ written notice, and claim compensation in accordance with the rules in clause 9 if the conditions for this are met. Payment default beyond 30 days is considered material breach. In the event of repeated payment default, DNI may require the Customer to provide satisfactory security for further delivery under the Agreement.
8 EFFECT OF TERMINATION
If the Agreement is terminated, the parties’ obligation to perform ceases. If the Agreement has been fully or partially fulfilled, DNI shall be compensated for the work that has been done and the parties shall, if possible, return what has been delivered. For ongoing services, termination means that the parties’ obligation to perform for the future ceases without returning services delivered.
The termination has no effect on contractual terms regarding trade secrets, the resolution of disputes or the rights and obligations of the parties as a result of the termination.
9. COMPENSATION
9.1 Basis of liability
The injured party may claim compensation for documented, direct losses suffered as a result of negligent circumstances on the part of the defaulting party. Costs for rectification/correction by reconstruction of data shall not be imposed on DNI if these significantly exceed the importance of the data, and the data can be recreated in a simpler/more affordable way than by reconstruction.
9.2 Scope of liability
Unless otherwise agreed, each party’s maximum liability per year is limited to 50% of the annual Contract Price excluding VAT for the services to which the compensation is linked.
However, the above limitation does not apply if it can be demonstrated that the party causing the damage has shown gross negligence or intent. In any event, the customer is responsible for limiting its costs and losses in the event of circumstances for which DNI is responsible. Losses or costs that the Customer may claim against others, such as its customers or other suppliers, cannot be claimed by the Customer from DNI.
9.3 Indirect losses
The Parties are in no event liable for indirect losses, including operating losses, lost profits, losses to Third Parties or other consequential financial losses.
9.4 The relationship between compensation and other sanctions
In the calculation of compensation, other sanctions paid or credited shall be deducted from the compensation.
9.5 Other liability
The parties have no liability for damages beyond what is prescribed in this clause 9.
10. REMUNERATION AND INVOICING
10.1 Fees
All prices in the Agreement are stated excluding VAT. The effects of changes in public taxes and/or orders for changes in the practice of laws and regulations regarding such taxes will be charged to the Customer.
In the case of services that are invoiced according to time spent, an additional 50% of the agreed hourly rate will be added to the hourly rate for work outside normal working hours (after 16:00). For work after 20:00 and on weekends/public holidays, a supplement of 100% of the agreed hourly rate will be added.
Travel and subsistence costs, including accommodation, are covered according to the state’s current rates unless otherwise agreed. Travel time is invoiced according to the agreed hourly rate.
10.2 Invoicing
Services invoiced by running hours are invoiced in the month after the services have been accrued. Licenses are invoiced from the first day the product is installed on the Customer’s server or on a Third-Party Solution if agreed, regardless of whether the delivered solution has been put into daily operation or put into use by the Customer.
If a fixed price is not specified, services are performed on running hours according to a non-binding estimate with a +/- 20% deviation. Deviations within 20% are not reported. Any deviations beyond this are made in consultation with the customer.
In the case of an agreement on a fixed-price delivery, 50% is invoiced at start-up and 50% at commissioning unless otherwise specifically agreed.
In the case of project deliveries that are to be invoiced according to agreed milestones, the payment milestones shall fall in line with the costs that DNI incurs in the project so that the principle of performance against performance is taken into account. Running services that are not based on hours shall be invoiced in advance per month.
Agreed expenses are covered upon invoice.
10.3 Remuneration adjustment
Unless otherwise agreed, all remuneration in the Agreement may be adjusted once a year in accordance with the development of Statistics Norway’s consumer price index (main index) and the service price index for computer consultancy services for hourly services.
Changes in exchange rates that affect costs incurred by DNI in connection with the benefits may be invoked with one month’s written notice.
10.4 Due date
The customer is obliged to pay within 30 calendar days from the invoice date.
10.5 Invoice fees
Invoice fees are charged according to the rules in force at any given time, currently NOK 89 per invoice.
10.6 Late payment
In the event of late payment, the Customer shall pay late payment interest in accordance with the Act of 17 December 1976 No. 100 on interest on late payment.
10.7 Sales pledge
DNI has a sales pledge for the purchase price and interest in accordance with the provisions of the Pledge Act, Section 3-14, in the hardware and software that the Customer purchases. The Customer is aware that, in accordance with the Pledge Act, Section 3-16, it cannot dispose of or pledge such pledged goods until the purchase price has been settled.
11. RIGHTS TO USE SOFTWARE AND DOCUMENTATION
11.1 Right of disposal
If the Delivery includes software and/or documentation produced by DNI, the Customer acquires a limited and non-transferable right to use the software with associated documentation for the Customer’s internal use in its organization as it appeared and was specified at the time of entering into the agreement. The customer’s right of use applies from delivery, as defined in section 4, provided that total payment of the consideration to DNI has been made.
The copyright, patent law and other industrial property rights in products from DNI remain the property of the DNI. An extension of the scope of the right of use must be agreed in writing in advance. The right of use covers normal use of the Delivery at the Customer’s premises or other agreed place.
The Customer does not acquire any right to a Delivery solely by actually using functionality or other performance. If the Customer uses functionality to which the Customer has actual access, but for which he has not paid the right to use, DNI has the right to invoice the Customer corresponding to the functionality or service the Customer has used.
11.2 Third-party software
In order to use DNI’s delivery, it may be necessary to use Third Party Software. Unless otherwise stated in the Agreement, the Customer is responsible for entering into necessary agreements with the individual supplier regarding Third Party Software or other services that are not to be provided by DNI. Customer is also responsible for all liabilities related to such Third Party Software. Prior to delivery, DNI shall, as far as this can reasonably be expected and based on information from the Customer, inform the Customer of which Third Party Software this applies to.
If errors in Third-Party software for which the Customer is responsible affect the functionality or availability of the Delivery, the Customer is responsible for ensuring that the error is corrected by the Third-party. DNI’s responsibility for the functionality of the software lapses until such errors have been corrected by a Third Party and installed at the Customer’s premises.
If DNI has to enter into an agreement with a Third Party regarding software or services for the Customer, DNI is not responsible for functionality, errors and omissions and other things in its deliveries/products. The Customer shall not use the Third Party Software, which DNI has forwarded to the Customer, until the software has been invoiced by DNI. Customer must comply with the license terms applicable to the Third Party Software.
11.3 Customer’s purpose
Unless otherwise agreed in writing or clearly stated in the purpose of the software, the Customer may only use the software for its own purposes. Use for others can only be made by written agreement with DNI.
12. INTELLECTUAL PROPERTY RIGHTS
The Agreement does not entail any transfer of rights to copyright, databases or other intellectual property rights. This also includes, among other things, systems, software, specifications, user documentation, formats, technical and user interfaces, technology, “know-how” and other things that are associated with the systems or that are developed in accordance with the Agreement.
If DNI performs work in accordance with the Agreement on software to which the Customer has the rights, the Customer shall have the rights to the results of such work.
13. RIGHTS TO DATA
The Customer owns the data that the Customer itself originates or has the rights to in another way. Data structures in which the data is presented are the property of DNI. The Customer may, by separate agreement, be granted the right to access, read and write access to the data. If such access is granted, DNI’s possible responsibility for service level agreements (SLA) will lapse. DNI may use the Customer’s data for testing purposes within the limitations imposed by law.
DNI has the right to access the Customer’s data, based on the “need-to-know” principle, in order to fulfill its obligations under the Agreement, including to perform support tasks, error handling and problem solving.
14. RIGHT OF ACCESS AND AUDIT
The customer has the right, by further agreement with DNI, to access and control the data that the customer himself is the source of. The customer does not have the right to access matters, including information and data, that are owned by or reserved for other customers of DNI or business-sensitive and/or strategic information for DNI. In system solutions that the Customer uses together with other customers, the Customer has the right to access the general part of the system, as well as customer-specific parts of common systems and solutions that apply to the Customer.
The customer has the right to use its external auditors to carry out statutory audits in accordance with good auditing practice on DNI’s services. In such a review, the auditor has the right of access to data, systems, data operations, control and security measures pursuant to laws and regulations, and to the extent required by good auditing practice.
The persons who have the right of access in accordance with the above shall be authorised by the Customer. The Client is responsible for ensuring that the person who is granted the right of access undertakes to comply with the agreed guidelines for such access, including familiarising themselves with the confidentiality obligations in general, cf. section 16.
For DNI’s resource consumption in connection with the exercise of the right of access and auditing, the Customer pays an hourly rate in accordance with the applicable rates.
15. PROCESSING OF PERSONAL DATA
If the Agreement includes the processing of personal data, the Customer is to be considered the controller and DNI is considered the data processor under personal data legislation. The Customer is responsible for ensuring that there is a legal basis for the processing of personal data under the Agreement.
The processing of personal data is regulated by a separate Data Processor Agreement as an annex to the Agreement.
16. CONFIDENTIALITY
16.1 Confidentiality
The parties have a duty of confidentiality regarding matters that they become aware of as a result of the Agreement. The duty of confidentiality must also be safeguarded in any error situations. Each party is responsible for any incorrect information. Both parties, and others for whom they are responsible, undertake to keep confidential information confidential, including by:
a) Not to disclose or otherwise disclose such information to any Third Party;
b) to process such information responsibly and to comply with the duty of confidentiality regarding systems and operating arrangements, as well as documentation regarding the Delivery, unless otherwise agreed in writing,
c) to protect information about the content of the Agreement, as well as other information that is clearly of a confidential nature or may harm or cause inconvenience to either party if it becomes known;
d) to ensure that necessary precautions are taken towards employees or others to prevent the dissemination of confidential information;
e) to remain silent about someone’s personal affairs,
f) restricting persons’ access to information of a confidential nature in scope and level of detail, based on the need necessary for the person in question to be able to perform imposed/agreed services (the “need-to-know” principle).
16.1 Confidentiality declaration
Each of the parties shall, if necessary, ensure that persons who, in the course of their work or in any other way, become aware of confidential/confidential information sign a declaration of confidentiality.
17. EXTENDED USE AND CHANGE OF PARTY
17.1 Extended use, etc.
If the Customer merges or otherwise enters into another enterprise or association, makes an acquisition of a portfolio, etc., and this will result in extended use of certain Deliverables or access to new software, a separate additional agreement shall be entered into regarding price and performance that takes into account extended use/right of disposal. However, the right of use pursuant to this Agreement shall not be extended until the additional agreement as mentioned has been entered into.
17.2 Change of parties
The parties may only transfer their rights and obligations under the Agreement with the written consent of the other party. Such consent may only be refused if there is objective and reasonable reason. The requirement for consent does not apply to transfers to companies in the same group, as defined in the Norwegian Limited Liability Companies Act/Public Limited Liability Companies Act § 1-3.
17.3 Transfer of the right to remuneration
The right to remuneration under the Agreement may be freely transferred. Such transfer does not exempt the party concerned from his obligations and liability under the Agreement.
18. AMENDMENTS AND SUPPLEMENTATION
If one of the parties wishes to amend or add to the Agreement (hereinafter referred to as amendment), or the amendment is necessary for other reasons, the following amendment procedure shall apply:
a) A request for change must be submitted in writing to the DNI or submitted by the DNI.
b) If the request for change is submitted by the Customer, and DNI accepts the request for change, DNI shall prepare a request for change that contains at least a description of the change, the effect of the change on the Contract price, the effect of the change on progress/completion time and the deadline for response.
c) If the content and effect of the change cannot be stated as mentioned in point b) above because there is no basis, the change must be investigated. The request for amendment must then include a description of the report, the cost of the report, how long the report will take, and the effect on progress/completion time and deadline.
d) The customer decides on the basis of the change request whether he wants the change or the report by signing the change request and returning to the DNI within the specified deadline.
If the Customer requests a change in another way, and DNI implements the change, DNI is entitled to compensation for the change according to the applicable rates.
The provision in this section 18 does not entitle either party to have an amendment implemented.
19. GROUNDS FOR EXEMPTION (FORCE MAJEURE)
If circumstances arise beyond the control of a party that the party should not have foreseen when the Agreement was entered into and that the party cannot reasonably be expected to overcome or avert the effects of, the rights and obligations of the parties shall be suspended for as long as the relationship lasts. This includes strikes, lockouts, pandemics, war, cable breaks, fire, water damage, acts of terrorism, communication outages or the like. The same applies to circumstances at the parties’ subcontractors. The party that wishes to invoke grounds for exemption under this provision shall give the other party written notice of the circumstances as soon as possible.
In the event of grounds for exemption, each party shall cover its own costs arising from the circumstances. In the event of grounds for exemption, the Agreement may not be terminated without the consent of the affected party, unless the situation is of such a scope or duration that maintaining the Agreement would be clearly unreasonable to the other party.
20. LAWS, REGULATIONS AND PUBLIC ORDERS
The parties shall keep themselves informed of and comply with applicable laws and regulations, including personal data legislation. The same applies to public orders directed at the parties.
If changes in laws and regulations, public orders directed at one party’s business may result in changes being made to software or systems or to the Delivery in general, the party shall make the other party aware of this and DNI shall prepare a proposal for a solution and a binding offer for the implementation of the change.
21. DURATION, TERMINATION, ETC.
If not included elsewhere in the Agreement, the Agreement shall remain in force for one year, after which it shall be renewed each year unless one of the parties terminates the Agreement with written notice no later than three months prior to new renewal. If the agreement concerns the delivery of a specific project, the Agreement will terminate after the project has been completed and the parties’ services have been completed.
DNI is obligated to provide assistance to the Customer in connection with the transition to any other supplier, for a fee. Such work is invoiced according to hours spent, consumption of machine resources, etc., by further agreement. Upon termination of the Agreement, DNI shall store the Customer’s data for three months. If the Customer has not entered into an agreement on further storage or disclosure of the data within the expiry of the three-month period, DNI may delete the data without prior notice. The DNI may invoice for the storage and disclosure of the data. The Customer is obliged to make necessary assistance available from the Customer’s own organisation and any other supplier, so that DNI can provide assistance as mentioned.
DNI is not responsible for the results of the transfer of the services. DNI is not obliged to transfer rights, transfer IPR, rights related to documentation or give third parties (competitors) access to this or know-how. If it is agreed that a third party will have access to information, data, etc., it is a prerequisite that a separate agreement is entered into regarding this (including confidentiality provisions).
22. REFERENCE, ETC.
DNI may use the Customer as a reference, including using the Customer’s trademarks in marketing. DNI shall have the right to clearly display its trademark and associated short text on the Delivery.
23. CHOICE OF LAW AND DISPUTES
The rights and obligations of the parties under the Agreement are governed by Norwegian law.
If a dispute arises between the parties regarding the interpretation or legal effects of this Agreement, this shall be resolved through negotiations. If such negotiations do not lead to a resolution within one month, either party may bring the dispute before the Norwegian courts for final decision.
Asker and Bærum are agreed as the venue.