Atea AS General Terms
The general terms (General Terms) from Atea AS (Atea) with the order and eventual additional documents (together referred to as the Agreement) between the customer (hereinafter the Customer) and Atea govern the deliverables from Atea if not otherwise is agreed upon in writing. Atea and the Customer are respectively referred to as a Party and collectively the Parties.
Part 1 of the General Terms consists of Standard purchase terms from Atea (purchase of products or services that Atea delivers to the Customer).
Part 2 of the General Terms consists of additional terms for ordered maintenance services (service, support, operational services and other maintenance services) from Atea to the Customer.
Amendments or deviations to the General Terms shall be agreed upon in writing. Atea may change the General terms without further notice and such changes will have immediately effect of any new orders from the Customer. Contract formation with later amendments, deviations or changes in agreed delivery as well as orders of products or services from Atea are assumed carried out by authorized personnel of the Customer, and the Customer’s given contact person at any time is assumed to have internal authority to commit the Customer. Product information, such as drawings, brochures and information on technical data, is only intended as a guide unless otherwise expressly agreed upon in writing by the Parties.
2.1 Delivery: The time when the Customer receives the deliverable at the agreed location.
2.2 Installation Date: The day when Atea has completed the agreed installation and gives the Customer notice of this.
2.3 Products: Equipment (hardware) and software.
2.4 Software: Both operating systems and applications are covered by this
definition, but only software in object version is included by this Agreement. 2.5 Service: The expertise and knowledge that Atea places at the Customer’s
disposal in return of a fee.
2.6 Performance: The services and/or products that the Customer is to receive from Atea according to the Agreement.
2.7 Normal working hours: Monday - Friday (on working days in Norway) cl. 08:00-16:00.
3. PRICE AND DELIVERY CONDITIONS
3.1The contract amount is to be invoiced upon Delivery or on the Installation Date if Atea is to carry out the installation work. Invoices fall due 14 days after the invoice date. Unless otherwise agreed, all prices are valid in 30 days after the date of Atea’s offer and stipulated in NOK excluding value added tax and other taxes and duties. Running fixed Services according to this Agreement shall be paid in advance from agreed start-up date if not agreed otherwise in writing, and the first invoice will cover the time until the first whole quarter of the year unless other invoicing period has been agreed upon.
3.2Should the Delivery or the Installation be delayed and not take place as agreed in the Agreement, and this delay is caused by Atea, the Customer may claim liquidated damages. The liquidated damages shall comprise 0.1% per calendar day that the delay lasts for, limited to a maximum of 10%. The basis on which the liquidated damages are to be calculated from is the contract value excluding value added tax of the delayed deliverable that affects the delay. A claim for liquidated damages shall, in order to be enforced, be submitted without undue delay. Atea shall not be liable for financial consequences relating to the delay that exceed the coverage inherent in the liquidated damages.
3.3 Unless otherwise agreed, Atea shall deliver Ex Works (INCOTERMS 2000) from the address the Product at any time is stored or directly from the address of Atea’s subcontractor. Freight amount paid by Atea or Atea’s subcontractor will be invoiced the Customer together with the Products. Should it be impossible for delivery to take place due to circumstances for which the Customer is liable, Atea undertakes to arrange storage of the goods until the Customer is ready to accept delivery. Atea is entitled to charge warehouse rent and other costs it incurs.
3.4 All prices are based on the postulation that the Services will be carried out within Normal working hours. Travels will be invoiced for the time spent travelling according to current rates. In addition, a kilometer price shall also be invoiced from the first kilometer in accordance with the Norwegian state’s Travel Allowance Scale rates for small cars. Costs of trips on ferries, trains, aircraft, parking, toll-road fees etc., will be invoiced in addition. Supplement for work and travel carried out between 16 and 20 on working days is 50 % of the ordinary hourly rate. Supplement for work and travel carried out between 20 and 08 on working days, during public holidays or during weekends is 100% of the ordinary hourly rate.
3.5 In the case of overdue payment, Atea is entitled to interest on overdue payments in accordance with the prevailing percentage rate pursuant to the
Norwegian Act on interest on overdue payments. A default on payment obligations in excess of 30 days entitles Atea to terminate the Agreement for substantial breach by giving 30 days’ notice. The right to terminate for substantial breach does no longer apply if the amount due and the interest accrued up to and including the date of payment are paid prior to the expiry of the aforementioned 30-day period.
3.6 Should laws, regulations, guidelines, tax adjustments etc., be adopted or amended after the Agreement has been entered into, and such amendments affect Atea’s costs or progress/opportunities to deliver, either Party may demand a change in the agreed price and/or progress/delivery plan that reflects the effect of such an adoption or amendment.
3.7 If currency rate fluctuations affect Atea’s costs, then Atea may adjust the prices accordingly without further notice. Unless otherwise has been agreed in writing, the applicable exchange rate is the exchange rate on the day when an accounting entry is made by Atea for the invoice from its subcontractor in the relevant foreign currency.
3.8 Atea may change the agreed prices with 1 month written notice according to the consumption price index for goods and services limited to twice each year. Atea may change the agreed prices with 1 month written notice according to cost changes for work and parts, in example due to documented price change from Atea’s subcontractor. Apart from this, the prices may be increased immediately upon the expiry of any warranty.
3.9 Should no price have been agreed on for the installation or other Performances from Atea, this is to be paid for according to the time spent and materials used.
3.10Should the Customer wish to change the agreed delivery 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.
3.11 If the Customer orders service/support/operational services/maintenance without a prior agreement or such Services shall be carried out outside the agreed Service Period, the following prices apply independent of day and time:
- Emergency fee per travel to the Customer, NOK 15 000 excluding VAT. - Hourly rate for work and travel per started working hour, NOK 3 200 excluding VAT.
3.12 Atea has a vendor’s fixed charge on the deliverable until payment in full has taken place.
4. SALE AND DELIVERY CONDITIONS FOR SOFTWARE, SERVICES AND EQUIPMENT FROM SUBCONTRACTOR
4.1 For purchase orders relating to software, services or equipment delivered partly or wholly by Atea’s subcontractors, the terms agreed upon between Atea and the subcontractor apply also to the Customer, including but not limited to the subcontractor’s terms relating to rights, warranty and termination.
4.2 The Customer is responsible for familiarising itself with the applicable terms, and represents, by placing a purchase order with Atea, that it is acquainted with the content of such terms. The applicable terms are available from the relevant subcontractor’s website or by enquiry to Atea.
5. PREPARATION OF THE INSTALLATION SITE
5.1 The Customer is responsible, at its own expense, for preparing the installation site for the equipment, including for arranging any separate electricity supply, grounding, installation of connection points (including data network), cooling and ventilation systems.
5.2 Atea is not liable for any errors or delays that arise as a result of defects in installations or other preparations for which the Customer is responsible. 5.3 Should the installation site not be ready or available at the time agreed on
and this is not due to factors for which Atea is liable, Atea is entitled to claim compensation for its costs/losses and demand that the delivery date be postponed correspondingly.
5.4 The Customer shall prepare and adjust the installation site so Atea can carry out the agreed Performance, which includes providing Atea access to the premises, to ensure that the original software (included installation keys, serial number and other necessary identifications to reinstall software) installed are available for Atea's technical personnel, to provide for maintenance and safe keeping of system documentation, to provide for back- up copies of software and data, to provide for necessary rights to equipment and software, and to provide for ll necessary approvals from third parties if the Costumer does not have all rights of the performances.
6. TRANSFER OF RISK
The Customer bears from Delivery the risk of the performance being accidentally destroyed or damaged.
7. WARRANTY AND COMPLAINT
7.1 Unless otherwise agreed, Atea guarantees that the deliverable is free of errors and defects for a warranty period of 12 months. The warranty period starts upon Delivery. If Atea is to carry out the installation, the warranty period starts on the Installation Date.
7.2 As regards standard equipment and software from a subcontractor, the Customer may not, unless otherwise agreed upon separately, assert more extensive rights than those which Atea has in its agreement with the subcontractor or which are a result of the subcontractor’s standard customer contracts for such Products. Atea shall make such terms and conditions available to the Customer upon request. Standard equipment or software is equipment or software that is supplied in accordance with the subcontractor’s specifications without any adaptations. The Customers is responsible to read and comply with license terms and other contract terms that apply for such standard equipment and software.
7.3 Atea's warranty liability does not cover factors for which the Customer bears the risk, such as accidents, fires, lightning, over-voltage, static electricity, water damage, environmental/climatic factors that are not covered by the specifications, or damage incurred in connection with construction work. Atea is not liable if the deliverable is exposed to abnormal or unauthorized use, or use that contravenes recommendations/guidelines stipulated by Atea. Nor is Atea liable if the Customer makes changes, modifications or connections to other equipment or carries out maintenance work etc., that have not been approved by Atea. The terms from the manufacturer of the software apply for delivered Software, see section 7. Atea’s responsibility is limited to errors on the media such Software is delivered on.
7.4 Should the Customer ascertain defects, the Customer shall without undue delay and at the latest within 12 months in accordance with section 6.1 complain in writing to Atea. Claims on Service performed by Atea shall be raised within 14 days after the Service has been carried out. The complaint shall contain a detailed specification of the defect. Should the complaint not be submitted in time, the Customer’s right to plead the defect shall lapse and Atea is entitled to invoice the Costumer for its work.
Atea shall cover the costs relating to the warranty with the exception of freight and insurance linked to the transport of the equipment from the Customer to the address stated by Atea for overhauls/repairs. Cures under this warranty will be carried out during Normal working hours.
Should the Customer so require, cure may also take place outside these hours, or cure may take place on the Customer’s premises, but then in both cases in accordance with Atea’s ordinary hourly rates for this type of work. Atea undertakes to cure defects via the telecommunications network (remote correction) as long as the deliverable makes this technically possible.
In the case of complaints regarding defects, Atea is entitled to at his own choice to carry out overhaul/repair work, to redeliver or to grant a proportionate reduction in price.
8. INTELLECTUAL PROPERTY RIGHTS
8.1Should Atea, during its performance of the work, create a material that is protected by intellectual property rights, Atea owns all intellectual property rights to the results of such material. The Customer is free to use such materials in its operations as a non-exclusive use right. However, the Customer may not, without Atea’s written consent, transfer any rights to such material to other parties.
8.2 With regard to performances from a subcontractor, the Customer may not assert more extensive rights than the rights pursuant to the terms agreed upon between Atea and its subcontractor. Atea shall make such terms and conditions available to the Customer upon request. The Customer obtains a non-exclusive right to use the software and may use the software on the equipment for which it has been delivered. The Customer is not entitled to make changes to the software. The Customer may copy the software for security purposes according to Norwegian law. Copies of the software may not be given to others in any form whatsoever. As regards standard software, the terms and conditions resulting from the manufacturer’s regulation of intellectual property rights, warranties, duration and other license terms are directly applicable to this Agreement.
9. INFRINGEMENT OF THIRD PARTY RIGHTS
Atea is liable to the Customer for ensuring that software sold from Atea does not infringe a third party’s intellectual property rights. The Customer is responsible to Atea for ensuring that performances bought from other parties do not infringe a third party’s intellectual property rights. Should a lawsuit be brought against the Customer alleging such an infringement, the Customer is obliged to inform Atea immediately of this allegation and/or lawsuit. Atea or Atea's subcontractor/intellectual property holder will take over the case and the costs and risks associated with it.
Should a ruling be handed down in accordance with the plaintiff’s statement of claim, Atea is entitled to choose between obtaining for the Customer the continued right to use the software, ending the infringement by amending or replacing the software with another program that has on the whole the same functionality, or terminating the contract with immediate effect in return for refunding the consideration the Customer has paid for the software.
The Customer is not entitled to raise further claims against Atea as a result of the above mentioned.
10. BREACH OF CONTRACT AND DAMAGES
Should Atea fail to comply with its obligations under this Agreement and this is not due to factors relating to the Customer or other factors that lie outside Atea’s control, and there is no standardized sanction for this failure to comply, then a breach of contract has occurred.
Should the Customer fail to pay by the agreed date, Atea is entitled to interest on overdue payments in accordance with the Norwegian Act relating to interest on overdue payments (Act no. 100 of 1976). In the case of a default on payment, Atea may halt the Performance of the Agreement by giving 5 days’ notice of this in writing. Should the Customer otherwise fail to fulfil its obligations pursuant to the Agreement, Atea may claim damages for additional expenses that Atea can document it will probably incur as a result of this failure.
The Party wishing to plead a breach of contract or claim damages must complain in writing, without unreasonable delay, once the Party in question discovered the breach
of contract. Should one of the Parties be in substantial breach of its obligations pursuant to this Agreement, the other Party may, after giving the Party a reasonable deadline by which to correct these factors, terminate the Agreement for substantial breach with immediate effect. In the case of termination for breach, the Customer shall pay for the Performance carried out until the date of termination.
In the case of a breach of contract, the party affected may claim damages for its documented financial loss pursuant to the general principles relating to damages in contractual relationships, with the following limitations;
a) Indirect loss and loss of data are not covered. Indirect loss include, but is not limited to, loss of profit of any kind, loss due to shutdowns, losses resulting from not being able to utilize something, damage to other objects or intellectual property rights and claims by third parties.
b) Each Party’s total economical liability shall under no circumstances exceed 50% of the contract amount (excluding VAT). As regards framework agreements, the claim for damages for the individual deliverable (each purchase order) covered by the framework agreement cannot exceed 50% of the value (ex VAT) of the deliverable in question. The total liability under the framework agreement shall be limited to NOK 500.000,-. The total amount paid as damages and refunds regarding breach of maintenance agreements shall not exceed the total consideration (excluding VAT) payable under the Agreement for the year the claim is set forward.
11. DUTY OF NON-DISCLOSURE
The Parties shall not allow unauthorized third parties access to information regarding the other Party’s systems, technical arrangements, personnel, business analyses and calculations, or business secrets that the Party discovers in connection with the entry into of the contract and performance of the delivery. This obligation applies both for a Party’s employees and cooperating parties’ employees.
12. FORCE MAJEURE
Should the execution of the Agreement be prevented, in whole or in part, or be made significantly more difficult due to circumstances which, pursuant to Norwegian law, would be considered to be Force majeure for the Parties or the Parties’ subcontractors, the Parties’ obligations are considered suspended to the extent that the circumstances are relevant and for as long as the circumstances last. However, either Party may cancel the Agreement by giving one (1) month’s written notice should the force majeure event make it particularly troublesome for the Party concerned to uphold the Agreement.
Rights and obligations pursuant to this Agreement cannot be assigned or in any other way transferred to other parties without the other Party’s written consent. Such consent cannot be withheld without reasonable cause. However, the Agreement can be assigned to another company within the same group of companies. Atea may make use of factoring or other assignment of claims.
14. CHOICE OF LAW AND DISPUTE RESOLUTION
The Agreement shall be interpreted in accordance with Norwegian law.
The Parties shall attempt to resolve disputes that arise as a result of the Agreement amicably. Should such disputes not be resolved out of court, either Party may bring the dispute before the ordinary courts for a ruling on the matter. Oslo District Court shall be deemed as agreed court of venue.
Part 1 Standard purchase terms and Part 2 Standard maintenance terms from Atea will govern, unless otherwise agreed upon in writing, for maintenance agreements from Atea when the Customer orders support, service or other maintenance (Part 1 and 2 together with agreed Performance and prices are referrred to as the Agreement).
Amendments or deviations from the Agreement must be agreed upon in writing. If the Customer purchases performances from Atea, Part 1 Standard purchase terms will govern such purchase if not agreed otherwise in writing.
Contract formation with later amendments, deviations or changes in agreed delivery as well as orders of performances from Atea are assumed carried out by authorized personnel of the Customer, and the Customer’s given contact person at any time is assumed to have internal authority to commit the Customer.
The Agreement governs the performances as are agreed, including support, service or other maintenance on the Products (hardware and/or software) which are covered by the delivery. Atea shall perform its Services in such a manner that the equipment and/ or software satisfy at least the same functional requirements, during the term of the Agreement, as applicable at the startup date of this Agreement. The Performance covers error situations that arise during normal operations.
16.1 Maintenance (also called service, support or operational services): The agreed Performance for service, support, operational services and other maintenance services to be delivered from Atea to the Customer.
16.2 Service period: The period, according to the Agreement, the Customer is entitled to Performance from Atea. Unless otherwise agreed, the Service period is the period on working days in Norway Monday to Friday from 08:00- 16:00.
16.3 Response time: Designates the time measured within the Service period from when an error is registered by Atea until Atea starts working on the error. Unless otherwise agreed in writing, Atea will start working on solving the error with the first available technician within the focus area. Customers with a response Agreement will prevail. Response time is measured within the agreed Service Period each quarter starting from the year’s first whole quarter – the measuring period – after the Agreement has started. Shorter Response time may be agreed upon in writing.
17. PRICE CONDITIONS
17.1 Prices for the agreed Performance
Price conditions stated in Part 1 section 3 shall apply unless otherwise is stated in this Part 2 section 16. Price for separate Performances shall be stated in ”Atea’s Price- and product attachment” (in example a separate Excel document) that is considered as an appendix of this Agreement. In case of conflict ”Atea’s Price- and product attachment” shall prevail of the General Terms. Maintenance related to performances invoiced upon Delivery or Installation Date or earlier according to the Agreement, and that are dependent on the subcontractor’s automatically renewal, will be automatically renewed and invoiced for 12 months periods repeatedly until one of the Parties’ cancel such Maintenance by giving three months’ written notice of this prior to the expiry of each period. Atea will automatically amend the Agreement with new performances or establish a separate agreement. Alternative service levels may be offered upon request.
17.2 Prices for additional Services or supplements
Should the performances covered by the Agreement be moved after the Agreement has been entered into, Atea may demand payment for the additional expenses this entails. Atea may invoice the Customer for services to remove or return Products that the Customer no longer wants to be covered by the Agreement according to Atea’s prevailing hourly rates for services, and this right will also apply in case of termination of the Agreement. Unless otherwise agreed in writing, Atea will also invoice the Customer for travel, spent work time and parts (parts will only be invoiced when the equipment is not covered by warranty or outside the warranty period).
17.3 Change in covered performances during the Agreement period
In the case of changes to the Products covered by the Agreement, the price of the Agreement will be automatically amended in the next invoice from Atea. The Customer will pay for Maintenance of cancelled Products during the cancellation period from the manufacturer of such Products.
Either Party may summon the other Party to a meeting by giving five working days’ written notice of this in order to discuss factors that arise in connection with the Performance of the Agreement, however limited to four times per year. Announcement and notice shall be given in writing to the other Party’s contact person. The Parties will cover their own meeting costs if not agreed otherwise in writing.
19. CHANGES AFTER CONTRACT FORMATION
Amendments to the Agreement after the Agreement has been entered into shall be in writing (in example in a separate appendix) and signed by both Parties or confirmed on e-mail between the contact persons of the Parties. Should it be necessary for the Customer to make changes during the Agreement period to the performances covered by the Agreement, the following provisions apply:
All changes or amendments from the Customer shall be given by a written notification to Atea regarding all changes. The type of performance and serial number of the equipment, as well as other necessary information on the performances that are to be excluded from or included in the Agreement, must be stated. Atea shall give the Customer an answer in writing on whether the change is accepted or not within 30 days. Atea cannot refuse to accept the change without reasonable cause. Should no answer be given by the deadline or the answer is negative, the Agreement is to continue unchanged. Should a request for a change be accepted, Atea will, in example in a tender, inform the Customer of the terms and conditions that will apply after the requested change, including the price. The change comes into force once a new ”Atea’s Price- and product attachment” or new appendix regarding the change is accepted by the Parties as a new document covered by this Agreement. If performances covered by this Agreement no longer is covered by the subcontractor or the subcontractor has terminated the production of spare parts etc., Atea may demand that such performance is considered removed from the Agreement and will have no economical liability for eventual necessary investments to upheld corresponding functionality for the Customer.
20. THE CUSTOMER’S OBLIGATIONS
The Customer is presumed to make arrangements so that Atea can carry out the agreed Performance and otherwise fulfil its obligations under the Agreement. Any omission may lead to the postponement or termination of Atea’s obligation to perform.
The Customer appoints 2 persons who can order assistance from Atea if not otherwise is agreed. The Customer is responsible for such persons having necessary competence to use the equipment and software and to assist Atea to make Atea perform the agreed Performance. The Customer shall assist Atea by applying for security clearance for Atea’s personnel in order to make it possible for Atea to carry out the agreed Performance. The Customer shall make arrangements so that Atea can carry out its obligations, among other things by giving Atea the necessary access to premises and written notice of any movement of equipment, acquisition or removal of equipment and changes in the use of equipment that is of significance to the Performance. Should Products covered by the Agreement be delivered by another supplier than Atea, the Customer shall inform Atea in writing of warranties and complaints regarding such Products. The Customer is responsible for the day-to-day operations and inspections, as well as for operational maintenance, and is responsible for Products being used and stored as prescribed by the manufacturer in accordance with recognized practice. The Customer undertakes to maintain at least as good operating conditions for the equipment as that specified by the system documentation for the individual unit or by Atea. The Customer accepts as an obligation to maintain the conditions relating to operating conditions for the Products as specified by Atea or described in the system documentation for such Products. The Customer is responsible for knowing the requirements to operating conditions. The Customer will carry out the necessary backup copies and is responsible for ensuring that backup copies are made in a proper manner and that the backup copies will be found to be in order. The Customer is also responsible for the appropriate storage of backup copies – the media and documentation. Unless otherwise agreed, the Customer is responsible for the equipment covered by the Agreement being connected to the public telecommunication network in accordance with Atea’s specifications should this be necessary for Atea to carry out the agreed Performance. It is the Customer’s responsibility to ensure that prevailing product specifications are complied with, and that only parts, disposable materials and accessories purchased from Atea or other authorized dealer are used. The Customer is responsible for original software that is installed will always be available to Atea’s technical personnel. This includes installation keys and/or other identifiers such as serial numbers etc. necessary for reinstalling software. The Customer is responsible for system documentation being maintained and properly stored. The Customer shall ensure that it has the necessary rights to equipment and software. The Customer is also responsible for obtaining all the necessary approvals from the owner if the Customer itself is not the owner of all the software or equipment related to the performances.
The Customer may not carry out repairs or adjustments to equipment or corrections to software apart from that which is approved by Atea.
21. LIQUIDATED DAMAGES
Should Atea fail to comply with its obligations under this Agreement as regards the agreed response time and any eventually agreed availability warranty, and this is not due to factors relating to the Customer or other factors that lie outside Atea’s control, a claim for a refund arises. The Customer shall invoice any refund claims separately. Written refund claims must be submitted without undue delay after the time overrun/non-conformance/delay has been or ought to have been ascertained.
Should no other refund be agreed on in writing, the following shall apply:
Should Atea exceed the agreed Response time by more than 25% in the measuring period, the Customer may demand a refund equal to 10% of the quarterly price each time for the affected performances. Should the response time be exceeded by 50% in the measuring period, the Customer may demand a refund equal to 20% each time for the affected performances. Paid refund will be deducted from any claim of damages.
22. DURATION AND TERMINATION
The Agreement is valid for 12 months. The Agreement will thereafter be automatically renewed for 12 months periods at a time, until the first day of the month in question, and the Parties are mutually entitled to cancel the Agreement by giving three months’ written notice of this prior to the expiry of each period. The Parties may agree in writing on another term for the Agreement period or termination.
As regards performances from a subcontractor, the Customer may not assert another duration or termination than those which Atea has in its agreement with the subcontractor. Atea shall make such terms and conditions available to the Customer upon request.
Updated Feb. 23 2017.