Atea AS General Terms for business customers - effective from October 31st 2022.
1. Scope of Agreement
These general terms (General Terms) apply to all Services, Software and Products, including maintenance and consultancy services (together, or individually, referred to as the Deliverables) delivered by Atea AS (Atea) to Atea’s customers (the Customer). The General Terms together with any applicable order confirmation (Order Confirmation) and any additional delivery terms to further describe the relevant Deliverables (Delivery Terms) are together referred to as the Agreement and shall govern the delivery and use of the Deliverables. In the event of contradiction, the special Delivery Terms take precedence over the General Terms. The General Terms do not apply to consumers.
Atea and the Customer are individually referred to as a Party and collectively as the Parties.
Orders are placed by the Customer, either by:
- Customer accepting the offer sent to Customer by Atea, or by
- Customer placing an order through Atea eShop, Atea Cloud Portal and/or telephone/electronic communication/e-mail.
Under both circumstances, an Order Confirmation is used to outline the contents of the order placed, under which the Customer is confirming its acceptance of the General Terms and any applicable Delivery Terms, together confirming the content and date of the Agreement.
In the event of errors on the Atea website or in an individual offer from Atea, Atea shall have the right to correct an Order Confirmation based on the error. Atea may decline, correct, or cancel any order for any reason at any time prior to the commencement of the Deliverables.
Unless made part of the Delivery Terms, any technical information such as drawings, brochures, or other as set out on Atea’s websites are for user guidance only.
The Customer representative acting on Customer’s behalf, is assumed to have valid authorisation from the Customer.
These General Terms represent a translation of the original Norwegian language version. In case of conflict or inconsistencies, the Norwegian version prevails.
2. Atea Portals – Access to Deliverables from Atea or others
The Customer is granted access to Deliverables as delivered by Atea, IT Manufacturers and/or the Vendors through Atea eShop and Atea Cloud Portal.
Atea Cloud Portal enables the Customer to manage its Public Cloud or SaaS applications and relevant SaaS related services, both as delivered by certain Vendors available therein, or by Atea (either directly or as a reseller).
Atea eShop enables the Customer to search for, find, compare and buy IT hardware, software, accessories and other related IT-services from Atea and/or IT-Manufacturer and Vendors.
All Deliverables are subject to the General Terms, and any specific Vendor Terms or IT-Manufacturer terms accepted by Customer, as the case may be.
The Customer acknowledges that any applicable Vendor Terms or other specific terms shall apply to Deliverables not provided by Atea. Atea assumes no liability for any warranties, delivery, pricing or other terms under the Vendor or IT-Manufacturer Terms.
In addition to the capitalized terms defined elsewhere in the Agreement, the following terms shall have the meaning ascribed to them as follows:
Agreement means these General Terms, and if relevant, together with applicable Order Confirmation and/or Delivery Terms. The Agreement governs Customer’s use of the Deliverables ordered from Atea (and delivered by Atea).
Customer Data means all materials provided by Customer to Atea either through the cooperation under the Agreement, or using the Deliverables, including, but not limited to personal data, order/financial information, text, graphics, and other materials generated in any form or media.
Deliverables means the Services, Software and/or Products delivered by Atea, either directly under an Agreement with Atea, or by a Vendor or IT Manufacturer under the terms of such Vendor and/or IT Manufacturer.
Delivery Date means the time when the Customer receives the Deliverables at the agreed location or when the Deliverables are made available to the Customer or as otherwise as agreed by the Parties.
Delivery Terms means the relevant document which includes additional delivery terms and description of the Deliverables.
Documentation means the service description or any other document that describes the Deliverables.
Installation Date means the day when Atea has provided notice to the Customer concerning completed installation of Deliverables.
IT-Manufacturer means the relevant contractor which may deliver the Deliverables ordered from Atea eShop, based on the General Terms and any applicable IT-Manufacturer terms (between Customer and IT-Manufacturer) for the relevant Product. Atea is not part of the IT-Manufacturer terms.
Normal working hours means Monday - Friday (on working days in Norway) 08:00-16:00.
Order Confirmation is used to outline the contents of the order placed, under which the Customer is confirming its acceptance of the General Terms and any applicable Delivery Terms, together confirming the content and date of the Agreement.
Products means the hardware including any embedded software, as included in the Deliverables.
Services means services delivered by Atea and as agreed between Parties, including, but not limited to, support services, cloud services, license services, consultancy, maintenance and other professional services.
Software means the software in object version, as delivered under these General Terms, and as identified in an offer and/or Order Confirmation.
Subscription means a licensing and delivery model in which the Deliverables are delivered on a subscription basis.
Subscription Date means the date of the Order Confirmation, on which the Subscription Term commences.
Subscription Term means the subscription period for the Deliverables which are specified in the General Terms, in the Atea offer and/or the Order Confirmation.
Vendor means the relevant supplier which may deliver the Deliverables ordered by Customer from Atea Cloud Portal, based on Vendor Terms between Vendor and Customer.
Vendor Product means product, Software and/or service identified in an offer or Order Confirmation and provided by Vendor according to the Vendor Terms.
Vendor Terms means the services-specific vendor agreement entered into by Vendor and Customer under the relevant Order Confirmation. Vendor Terms, placed on the Atea Portal, govern the access and use of the Vendor Product(s). For the avoidance of doubt, Atea is not a party to and assumes no liability under the Vendor Terms.
4. Fees and delivery conditions
All invoices shall be specified sufficiently so that the Customer may check conformity with what is agreed. Hourly rates and number of hours accrued shall be specified. If not otherwise agreed to by the Parties, all invoices are payable within 14 calendar days from the invoice date. Unless stated otherwise, all fees are stated and payable in Norwegian kroner.
Unless otherwise specified in the Delivery Terms and/or Order Confirmation, all prices are stated excluding value added tax, but including customs duties and any other indirect taxes.
In case of payment default, Atea will notify the Customer and charge the Customer a late fee and claim interest on overdue payment pursuant to the Norwegian Act on interest on overdue payments.
If the Customer has not paid the overdue amount with the addition of late payment interest within thirty (30) calendar days from the due date, Atea may send a written notice to the Customer, stating that the Agreement will be terminated for breach.
Atea may retain a security interest in all Products until paid for in full.
Upon receipt of Deliverables, the Customer shall inspect the packaging for damage before the carrier leaves the place of delivery. If the Customer discovers damage to the packaging, this must be noted on the consignment note or equivalent and reported to Atea as soon as possible. Customer shall pay attention to the Atea checklist for receiving of goods: https://www.atea.no/eshop/documents/Sjekkliste-mottak_av_gods.
The Customer may through MyAtea, request a return of the Delivery against a fee, if return is made within 2 weeks after delivery, and only if the IT manufacturer or Vendor accepts such return under its terms. Customer must not break the seal prior to returning the Deliverables. Atea shall have the right to rejects such requests.
All Products are delivered Ex Works (INCOTERMS 2020) from the Atea address set out in the Order Confirmation. Any shipping and freight costs will be invoiced to the Customer. If delivery cannot take place due to circumstances on the Customer's side, Atea may, at the cost of the Customer, arrange storage of the goods until the Customer is ready to receive the delivery. Atea is entitled to charge warehouse rent and all other costs such storage incurs.
Disbursements, including travel and subsistence costs, will be invoiced, and shall be reimbursed by Customer pursuant to the Government Travel Allowance Scale applicable at any given time, unless otherwise agreed. Supplement for travel time carried out between 16 and 20 on working days is 50 % of the ordinary hourly rate. Supplement for travel time carried out between 20 and 08 on working days, during public holidays or during weekends is 100 % of the ordinary hourly rate.
Unless otherwise agreed to between the Parties, all consultancy services are delivered on a time and material basis and carried out within Normal working hours. If the Customer orders service, support, operational or maintenance services without a prior agreed Response agreement, or such services are carried out outside the agreed Service period, additional Call-out fees may apply.
Under the product "The free choice" in Atea eShop, Atea offers to its customers an option to agree to a fixed fee under which its employees may purchase Products for professional use under the Agreement. Under The free choice, the Customer's employees may choose to spend the fixed fee as made available by the Customer, or to add additional out-of-pocket payment to upgrade to another Product as the employee wishes. Such Products shall always be used for professional use, and the Product shall be included under the Agreement. For the avoidance of doubt, such additional payment by the employee does not create any contractual relationship between Atea and the employee. All payments made under The free choice shall be treated as payment from Customer to Atea in accordance with the Agreement.
5. Terms and conditions for Software, Services and equipment from IT-Manufacturer
For orders relating to Software, Services or equipment delivered partly or wholly by IT-Manufacturer, the General Terms apply, together with the relevant IT-Manufacturer’s terms for the relevant Deliverable, including but not limited to the IT-Manufacturer’s terms relating to user rights, pricing, warranties and termination. For the avoidance of doubt, Atea assumes no rights or obligations under the IT-Manufacturer’s terms, or for the delivery of IT Manufacturer’s part of the Delivery, as these are entered into between the Customer and the relevant IT-Manufacturer directly.
The Customer is responsible for familiarizing itself with the applicable IT-Manufacturer terms.
6. Terms and Conditions for Software and services delivered by Vendors
Vendor Products are provided in accordance with the Vendor Terms. Upon request from Customer, Atea will make Vendor Terms available to the Customer prior to Order Confirmation. The Vendor Terms are entered into by Customer and Vendor directly, and Atea is not a party to and has no responsibilities for the Deliverables under the Vendor Terms entered between the Customer and the Vendor. The Customer acknowledges that the Customer is solely responsible for the use of Vendor Products.
7. Changes to General Terms, Deliverables and Prices
All changes to the General Terms shall be made in writing and upon mutual acceptance of both Parties.
Notwithstanding the above, Atea has the right to make changes in Deliverables, including full or partly cessation of a Deliverable. Atea may also make changes in prices and terms including changes to these General Terms. Atea shall notify the Customer in an appropriate manner, and no later than one month before the change takes effect. Replacement units for defective parts of the Deliverables replaced under a support and maintenance agreement may be new or like new quality but shall not be seen as a change of Deliverables.
Atea reserves the right to adjust prices due to currency and/or changes in price index, without further notice to the Customer. Should the Customer wish to change the agreed Services which leads to different scope of the delivery obligations than assumed, Atea is entitled to demand a change in the consideration due and/or time schedules.
Changes on the part of the IT-Manufacturer and Vendor, such as changes in the Deliverables, for instance changes in the cloud service's functionality or changes in the conditions for using such cloud services, apply to the Customer and may affect the Customer's ability to use such Deliverables.
For Deliverables from IT-Manufacturers and Vendors, the relevant IT Manufacturer or Vendor terms shall apply and prevail. The Customer is responsible for reading and complying with such terms, and other contract terms that come with standard equipment, third-party cloud-services and software. In the same way, the Customer is responsible for complying with conditions that apply to the use of third-party cloud services.
9. Intellectual Property Rights
The Customer has the right to use the various parts of the Deliverables as agreed to in the Delivery Terms or subject to the terms of the IT-Manufacturer and/or Vendor as applicable.
If not otherwise agreed to under the Delivery Terms or in the Order Confirmation, and if, during the performance of the Deliverables, Atea creates material that enjoys intellectual property protection, Atea retains all intellectual property rights, title, and interest to such material and documentation, including without limitation all software, virtual machines, and other technology used to provide the Deliverables and all logos and trademarks reproduced through the course of delivery. This ownership shall apply to all copies and portions of such material, and all improvements, enhancements, and derivative works thereto.
Atea grants the Customer with a limited right to use such material for its internal business purposes, in the term of the Agreement, as a non-exclusive right of use. The Customer may not transfer the user rights to such material to any third-party, without Atea’s prior written consent.
The Customer’s user rights to Deliverables from IT-Manufacturers and/or Vendors, are subject to the applicable IT Manufacturer or Vendor Terms.
10. Infringement of Third-party rights
If a component of the Deliverables for which Atea is responsible becomes, or in Atea’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Atea will promptly take the following actions, at no additional charge to Customer, in the listed order of priority: (i) secure the right to continue using the relevant component, or (ii) replace or modify the component to make it non-infringing. If neither of such actions can be accomplished by Atea using commercially reasonable efforts, and only in such event, Atea will remove the component from the Deliverables. Under such circumstances, the Customer shall be entitled to return the relevant component of the Deliverables and be refunded the associated share of the purchase price. The Customer is not entitled to raise further claims against Atea because of the above mentioned.
11. Errors and breach of contract
Should one of the Parties fail to comply with its obligations under the Agreement then a breach of contract on that Party has occurred.
The Party wishing to plead a breach of contract and claim damages must complain, without unreasonable delay and at the latest within 60 days, to the other Party after the breach of contract was discovered. Claims related to consultancy services performed by Atea shall be raised at the latest within 7 days after such service has been carried out. All complaints must be made in writing and shall contain a detailed specification of the error or deficiency. There is no breach of contract, and Atea has no liability if the situation is caused by circumstances related to the Customer or by force majeure or by other circumstances beyond Atea’s control. Atea has no liability under a Vendor’s, an IT-Manufacturer, or other third-party vendor’s deliveries and/or delivery terms.
Damage that it is not possible to detect on a Product before the packaging has been removed must be reported to Atea without undue delay for Products sent from Norway, and no later than 7 days from the Delivery Date for Products sent from abroad. When returning damaged or defective Products according to this provision, the Customer shall send Atea pictures showing both packaging and goods from several different angles that enable Atea to assess the condition of the packaging and the goods. This applies even if the packaging is undamaged. Upon return / complaint, the Customer must take care of received packaging until the case has been clarified.
If the Customer has not notified for claims or damages according to this clause, Atea may reject later complaints and claims related to defects or damage that should have been discovered during inspection of the packaging.
In the case of defects, Atea is entitled to at his own choice to remedy the defect, to redeliver, or to grant a proportionate reduction in price. Atea shall commence the effort of curing the breach of Agreement without undue delay and carry Atea’s costs relating to such remedy or redelivery, except for freight and insurance linked to the transport of the Products from the Customer to the address stated by Atea for overhauls/repairs.
Remedies will be carried out during Normal working hours. Should the Customer so require, remedy may also take place outside these hours, or remedy may take place on the Customer’s premises, but then as agreed between the Parties, and in both cases in accordance with Atea’s ordinary hourly rates for this type of work. If possible, Atea reserves the right to remedy defects online.
If one of the parties materially breaches its obligations under the Agreement, then Section 13.2 shall apply. In the case of termination for material breach, the Customer shall pay for the Deliverables carried out until the date of termination.
12. Limitation of Liability
In the event of a breach of the Agreement, the party affected may claim compensation for direct documented financial loss according to general principles for compensation in contractual relationships with the following limitations:
- Neither Party will be liable for any indirect or consequential loss, or for any loss of data. Indirect loss includes, but is not limited to, loss of profits or earnings of any kind, loss due to shutdowns, loss resulting from not being able to utilize the Deliverables, damage to other objects, intangible assets or intellectual property rights, data loss, and claims from third parties and Vendors or IT-Manufacturers.
- A Party’s total liability for each single instance shall not exceed 50 % of the payment made for the relevant part of the Deliverables (excl. VAT) during the last six (6) months. However, the total overall responsibility under the Agreement shall under no circumstances exceed NOK 500,000 (excl VAT).
13. Term and termination
The Agreement and Subscription Term shall commence as of the date of the Order Confirmation, and, unless earlier terminated as provided herein or otherwise agreed, shall continue in effect until terminated.
13.2 Termination for convenience
For Deliverables from Vendors and IT-Manufacturers, the Customer may not terminate other than as stated in the Vendor- or IT-Manufacturer’s terms.
For deliveries made only by Atea, the Parties may terminate the Agreement with three (3) months written notice before the end of the current Subscription term. Customer shall pay all agreed fees up until the end of such Subscription term.
13.3 Termination for Cause
The Agreement may be terminated as follows:
- If a Party materially breaches a term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the Agreement upon written notice to the breaching party; or
- if a Party becomes insolvent or makes an assignment for the benefit of creditors, then the other Party may terminate the Agreement effective immediately upon written notice to the other party; or
- if a Party is dissolved or liquidated, then the other Party may terminate the Agreement effective immediately upon written notice to the other Party.
13.4 Termination of Subscriptions
The Subscription Term will run until actively terminated by Customer, either through Atea Cloud Portal/My Atea, or by Customer’s notification in writing to Atea:
- Self-service Customers may terminate or suspend the Subscription via eShop/ Atea Cloud Portal, and
- Other Customers notifies Atea which actively will terminate the subscription on behalf of the Customer.
13.5 Effects of Termination
Upon termination or expiry of the Agreement, the following provisions shall apply:
- All Fees incurred but unpaid up until termination date shall become immediately due and payable to Atea by Customer.
- If not otherwise agreed, the Customer shall forthwith cease to use the Deliverables and shall promptly return all copies of the Documentation to Atea or else destroy those copies of Documentation upon Atea’s request.
- All rights and authorizations granted to Customer under the Agreement shall immediately cease.
- Atea will assist the Customer in good faith in migrating the Customer Data. Atea's fees for such migration will be calculated on the basis of Atea's hourly rates applicable from time to time and the expenses incurred by Atea's sub-contractors. Notwithstanding the foregoing, the Customer will be responsible for migrating the Customer Data.
- Unless otherwise agreed to with the Customer, Atea will delete all Customer Data upon 30 days after termination.
14. Confidential information
Neither Parties may transfer to third parties, or allow unauthorized persons access to confidential information, including but not limited to Customer Data, information regarding the other Party's systems, technical facilities, personnel matters, business analyzes and calculations, or other trade secrets that are not publicly known, which a Party becomes aware of in connection with entering into and performance of the Deliverables under the Agreement. This applies to the Parties’ own employees, and to any third parties’ employees.
15. Information Security
15.1 Information Security Controls
Each Party shall be responsible for establishing and maintaining information security program that includes appropriate technical and organizational measures to (i) ensure the security and confidentiality of Customer Data; (ii) protect against unauthorized access, alteration, destruction, disclosure, loss, or use of Customer Data that could result in substantial harm to Customer or any of its customers and/or end-users; (iii) protect against any reasonably anticipated threats or hazards to the security or integrity of Customer Data. Parties acknowledge that Customer remains ultimately responsible for maintaining information security of its own systems, equipment (including but not limited to servers, workstations, routers, switches), network, data communication lines, as required to operate the Products.
15.2 Trained Personnel
Each Party shall ensure that any of its personnel and/or contractors authorized to process Customer Data or Confidential Information have been appropriately trained and are aware of that Party’s information security policies and procedures. Each Party must conduct appropriate information security awareness training for all its personnel and contractors prior to being appointed to work on Customer Data. Thereafter, each party must introduce information security training routines to maintain the appropriate level of information security awareness.
16. Personal Data
Atea and the Customer may exchange personal information as necessary for the purpose of administration and follow-up of the Agreement. For such processing of personal data, each of the Parties is responsible for its own processing, and each of the Parties is responsible for compliance with the Norwegian Personal data Act and the EU Regulation 679/2016 GDPR (GDPR).
The Customer is acting as a controller for all processing of personal data that the Customer does using equipment and software, including cloud services, provided by Atea. Atea is not responsible for breaches of personal data security caused by the Customer's use of equipment, software, or cloud services.
If Atea is to process personal data on behalf of the Customer, acting as a data processor, a data processor agreement must be entered into between Atea and the Customer, in accordance with the Norwegian Personal data Act and the EU Regulation 679/2016 GDPR (GDPR).
The rights and obligations under this Agreement may not be transferred to third parties without the written consent of the other party. Consent cannot be denied without objective and reasonable grounds. However, the Agreement may be transferred to another company in the same group of companies. Atea is free to use factoring and other transfer of receivables.
17.2 Compliance with Laws
Both Parties shall and shall cause each of its affiliates and representatives to comply with Applicable Law and shall obtain and maintain in effect all licenses, certificates, permits, consents, and other governmental authorizations required to perform their obligations under the Agreement.
17.3 Force Majeure
If the delivery under the Agreement is completely or partially hindered or significantly hampered by circumstances which under Norwegian law will be judged as Force Majeure, for the Parties or any of its subcontractors, the Parties' obligations are suspended to the extent relevant, and for as long as the event lasts.
However, either party may terminate the Agreement with one (1) month written notice if the Force Majeure event makes it particularly burdensome for the Party to maintain the Agreement.
All notices, requests, claims, demands, and other communications shall be in writing and shall be signed by a person duly authorized to provide such notice.
17.5 Governing Law
The Agreement shall be governed by and construed in accordance with the of laws of Norway without reference to any conflict of laws principles under which different law might otherwise be applicable.
17.6 Dispute Resolution
Disputes between the Customer and Atea shall be solved amicably if possible. If this is not possible, either party may bring the dispute before the ordinary courts, with Oslo District Court as the legal venue.