Introduction
These general terms and conditions apply to the delivery of services (including hourly charged deliveries) from Supplier to Customer. Supplier can make changes to the General Terms and Conditions, provided that this does not result in material cost or disadvantage for Customer.
Definitions
The following terms and expressions shall, whenever used in this agreement, have the following meanings:
“Supplier” means the Crayon affiliate being the party to the Agreement.
“Customer” means the legal entity signing this agreement with Supplier.
“Services” means any and all services provided through this Agreement by Supplier to Customer
“Subcontractor” means any independent consultant, third party entity or Crayon Group AS affiliates contracted by Supplier in order to complete Supplier commitments.
“Service Level Agreement” means service levels for a particular service governed in accompanying service descriptions
1. Supplier’s commitments and responsibilities
Supplier shall:
(i) Provide the functions and complete the delivery specified in Agreement in accordance with industry standards and generally accepted quality levels.
(ii) Ensure that personnel completing the delivery have the necessary competence.
(iii) Notify the customer of any relevant special circumstances which may affect its performance, in order to avoid errors, operation interruptions and losses.
(iv) Where any specific service delivery is regulated by a Service Level Agreement provided by Supplier to Customer, use best efforts to ensure the delivery of such specific service in compliance with such Service Level Agreement.
2. Customer’s commitments and responsibilities
Customer shall:
(i) Provide conditions so that Supplier can complete Supplier’s commitments including, but not limited to, giving Supplier necessary access to locations, offices, equipment, software and applications.
(ii) Proactively give Supplier information and documentation that are relevant to enable Supplier to complete Supplier’s commitments.
(iii) Ensure security clearance for Suppliers personnel as required to enable Supplier to complete Supplier’s commitments.
(iv) Ensure that necessary rights to software are present and valid.
(v) Acquire all necessary approvals from the equipment or hardware owner if Customer does not own the equipment or hardware.
(vi) Take necessary precautions to avoid cyber attack, spreading of virus or other malicious software. This includes responsibility for maintaining updates and completing current virus tests.
3. Subcontractors or delivery by Crayon Group Affiliates
Supplier is responsible for subcontractors contracted by Supplier or Crayon Group AS affiliates in order to complete Supplier commitments. Supplier with provide information to Customer regarding which Subcontractors and/or which Crayon Affiliates are used to complete Supplier commitments.
4. Payment Terms and Conditions
4.1 Terms
The price which Customer shall pay for Supplier’s delivery is stated in the Statement of Work and/or Pricing Sheet. For deliveries where the price is not specified, Supplier’s standard hourly rates at the time of delivery will be paid. Travel expenses and related expenses, such as meals, shall be invoiced to the customer unless otherwise agreed in writing between Customer and Supplier. Time used for travel to and from location will be invoiced per hour at the standard hourly rates at the time of delivery unless otherwise agreed in writing between the parties.
4.2 Invoicing and Payment
Invoices will be sent monthly for subscription services and time and material deliveries and on completion of delivery for fixed price deliveries, payable within fourteen (14) days from the date of the invoice unless otherwise agreed in writing. Fixed price and subscription deliveries will be invoiced in advance or in arrears as specified in the pricing appendix (Appendix 5) unless agreed in writing between the parties. Deliveries payable by the hour and costs not included in the fixed price or subscription will be invoiced in arrears.
Customer shall not withhold payment or offset payment to Crayon unless Crayon has acknowledged Customer's claim or there exists a legally enforceable decision supporting such claim.
Where completion of delivery of a project is dependent upon Customer sign off, Customer shall not unreasonably withhold customer sign off unless Crayon has acknowledged Customer's claim or there exists a legally enforceable decision supporting such claim.
If Supplier has submitted such Project Sign Off form to the customer and this form is not signed off by Customer within five (5) business days and Customer has not raised any issues to Supplier that the Supplier agrees constitute a delay in delivery caused by Supplier, Supplier’s breach of agreement and Crayon has acknowledged Customer's claim or there exists a legally enforceable decision supporting such claim the delivery will be invoiced.
Supplier has the right to payment in advance of delivery if it becomes apparent to Supplier that Customer’s economic situation implies that this is necessary.
4.3 Price Changes
Prices for continuous deliveries will be adjusted as per the 1st January each year in accordance with Statistics Norway Consumer Price Index for the preceding year.
Supplier can demand additional payment to cover documented costs related to any increases in customs or fee rates that become valid during the period of Agreement, or cost increases effected by conditions caused by the Customer.
5. Meetings
If Customer or Supplier finds it necessary, Customer or Supplier can with 5 working days notice demand a meeting with the other party to discuss the agreement relationship and the execution of the deliverables covered by Agreement.
6. Changes to Agreement after commencement of Agreement
If Customer has a need for changes such that the delivery character or scope is different to that which is agreed under Agreement the Customer may submit a change request to Supplier. Supplier may give its acceptance subject to adjustments in the price or project plan and timeline.
The requirement for adjustments in price or project plan and timeline must be presented to Customer at the same time or before the change request is accepted. Changes to Agreement shall be in writing and signed by individuals with the authority to commit from Customer and Supplier, respectively. A register of changes to Agreement shall be documented.
7. Confidentiality
7.1 Supplier
Confidentiality provisions in the Norwegian Public
Administration Act (law 10. February 1967, §§ 13-13f .) shall apply mutatis mutandis
to Supplier's staff. Furthermore, these are obliged to comply with the security
rules and any other confidentiality obligations that apply to Customer's staff
at any time and which are specifically notified to Supplier.
Customer may require Supplier to issue a separate confidentiality statement
which Supplier will submit to Customer.
If Supplier uses subcontractors, Supplier shall ensure that they are subject to
at least the same provisions of confidentiality as Supplier.
7.2 Customer’s Staff and Outsiders
Customer has full duty of confidentiality regarding all
matters relating to Supplier that the Customer becomes acquainted with,
including methods, concepts, equipment and software. Customer shall ensure that
their employees sign the necessary confidentiality statement for this purpose.
If it is absolutely necessary for Customer to give third parties access to such
information, Customer shall impose on such third parties the same
confidentiality obligation as applicable to Customer's own employees.
8. General on Intellectual Property Rights (IPR)
The agreement does not involve the transfer of IPR from Supplier or third parties to Customer beyond what is specifically agreed.
9. Software
9.1 Rights of use
Customer is solely responsible for having the necessary
permissions / rights to software and the Customer shall make the necessary
agreements with software and equipment suppliers and comply with them.
If Supplier makes changes to third-party software, Supplier is responsible for
the Customer having the right of use that is necessary for applications to be
used without prejudice to the copyrights or other rights of third-parties.
9.2 Functionality and availability
Supplier has no responsibility for third party software working or meeting Customer's needs. Supplier also has no responsibility for third party software being placed at the Customer's disposal during the term of the Agreement.
9.3 Supplier’s Software
If Customer has contractual access to source code,
Customer may – at his own responsibility –make changes and modifications to the
software only if agreed in writing. If Supplier shall be responsible for the
changes or modifications that Customer has made this must be agreed in writing
between Supplier and Customer.
Any diagnostic software with associated media, documentation, equipment or
other material belonging to Supplier shall remain the Supplier's property and
shall not be used or deployed/removed by Customer, or made available to third
parties without Supplier’s prior written consent. Supplier is entitled to
retrieve effects as mentioned when Agreement terminates. This also applies to
any remote diagnostic products installed in equipment or Customer’s environment
by the Supplier, which can be removed without implying unreasonable
disadvantages for the Customer.
Customer is solely responsible for having the necessary hardware and other equipment and for taking necessary backups.
11. Force majeure
Should an extraordinary situation occur beyond the control of Parties and make it disproportionately burdensome to fulfill agreed obligations and which, according to law, should be regarded as force majeure, the counterparty shall be notified of this as soon as possible. The affected party's obligations are suspended for as long as the extraordinary situation lasts. The obligations of the other party shall be suspended for the same period. The counterparty may in force majeure situations only terminate Agreement with the affected party's consent or if the situation lasts or is expected to last for more than 60 calendar days, counting from the date the situation occurs, and then only with 15 calendar days notice. Other durations may be agreed upon. In case of force majeure situations, the parties have mutual information obligations to each other on all matters that may be considered to be of importance to the other party. Such information should be given as quickly as reasonably possible.
12. Supplier’s breach of Agreement
12.1 What is considered as a breach of Agreement
There is a breach of Agreement by the Supplier if the services are not delivered in accordance with what has been agreed in Agreement. However, there is no breach if the situation is caused by circumstances related to the Customer.
Customer is obliged to complain in writing without undue delay after the Customer has received, or should have received, knowledge of a breach of Agreement.
12.3 Right and duty to correct
Supplier has the right and duty to rectify breaches in Agreement if this can be corrected without any material disadvantage for any of the Parties. If, within a reasonable time, the Supplier has failed to remedy the breach, the Customer may request a relative price reduction.
12.4 Extension in deadline due to delay
If delivery will be delayed, an extension to the deadline may be agreed. If Supplier submits to Customer a written request for an extension to the deadline, it is deemed accepted if the Customer has not sent a written reply within five business days from the date of receipt of such request. If an extension is agreed and delivery is completed before the extended deadline expires, clause 12.5 cannot be invoked by Customer.
12.5 Limitation of liability
Crayon shall not be liable for any delays or claims that is the result, directly or indirectly, of the failure by the Customer to comply with the reasonable requests of Crayon, or from the breach by the Customer of any provision of the Agreement. Neither party shall be liable to the other party for any indirect or consequential damages, including lost revenues, lost profits, or lost prospective economic advantage, whether or not foreseeable and whether or not based on contract, damages, statutory or warranty claims or otherwise. Each party hereby releases and waives any claims against the other party regarding such damages. Furthermore, neither party’s liability for damages shall under any circumstances exceed the aggregated fees (excl VAT) invoiced by Crayon under the Agreement during the twelve (12) months period immediately preceding the calendar month in which the cause of the liability arose. Until the first calendar year is ended, the maximum liability shall be calculated as the average fees paid per month during the validity of the Agreement multiplied by twelve (12). Further limitations of liability may be set out in the Agreement.
12.6 Exclusive provisions
12.6.1&nbnbsp; The provisions of clause 12 provide exhaustive provisions as to what shall be regarded as breach of Agreement and the consequences thereof. The supplier gives no warranties beyond what is specifically agreed and the general contract law regarding the characteristics and properties of goods / services and breaches of agreement shall not apply.
12.6.2 Loss of Service Availability caused by any of the following (each, an “Exclusion”) will be excluded from Service Availability calculations: (i) issues beyond Supplier’ reasonable control, including, without limitation, denial of service or similar attacks, mail bombs, DNS resolution, domain name expiration, hardware failure, Internet availability, Client’s portion of the network, downtime of third party service providers or software providers, downtime of any third party Cloud Services Providers services (for example Microsoft, Amazon or Google), IP transit provider issues, SYN attacks, and other similar events or any Force Majeure event, or (ii) other issues addressed in the accompanying Service Level Agreement for the specific service provided.
13. Termination with immediate effect
Both parties may terminate Agreement with
immediate effect if a material breach of Agreement occurs. If such breach of
Agreement cannot be corrected, written notice of termination shall be given
immediately and the defaulting party will have a minimum of 7 days to rectify
the relationship.
The following is always considered to be material breach of Agreement:
- More than 30 days payment failure by Customer
- Bankruptcy, insolvency or debt negotiations
14. Loyalty
During the term of this Agreement and then for a period of 6 months after expiry of this agreement Customer may not provide Supplier's personnel with any form of employment offer, engagement or hire from subcontracted third parties. Supplier's personnel are defined as permanent employees of Supplier and Contractor's, hired consultants and subcontractors to the Supplier. The Supplier's personnel also include persons who have terminated their employment or involvement with the Supplier during the last 6 months. Exceptions to this provision require written consent from the Supplier. In case of violation of this provision, Customer shall pay, in addition to ordinary liability, pay a fee of NOK 150,000, - for each breach of this clause.
15. Insurance
Customer is responsible for ensuring Customer has adequate insurances for its own assets, activities, third party liabilities and any other insurances required for the fulfillment of this Agreement.
Supplier is responsible for ensuring Supplier has insurances to cover claims from Customer as a result of Supplier’s risk and responsibilities in Agreement.
16. Law and jurisdiction
The Agreement shall be governed by the substantive laws of the principal place of business of Crayon, without reference to its choice and conflict of law’s provisions. The Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods. All disputes arising out of or in connection with the Agreement shall be finally settled by the ordinary court of the principal place of Crayon, except that Crayon may, at its own option, bring suit for collection in the country where the Customer is located.