STANDARD TERMS AND CONDITIONS FOR AGRIPPA IMPROVEMENTS
These standard terms and conditions (the “Terms“) are binding for the “Customer’s” (as set out in the Order Form) use of the Agrippa Improvements software (the “Agrippa Software“) and the Agrippa Improvements mobile application (the “Agrippa App“) provided by Agrippa Solutions AS (“Agrippa“). The Agrippa Software and the Agrippa App are collectively referred to as the “Services“.
Agrippa and the Customer have entered into an order form (“Order Form“), under which the Customer has ordered certain Services from Agrippa. The Order Form and Agrippa’s provision of the Services to the Customer are governed exclusively by these Terms unless otherwise agreed in writing. The Order Form and these Terms are collectively referred to as the “Agreement“.
Agrippa and the Customer will hereinafter jointly be referred to as the “Parties” and individually as a “Party“.
If an establishment phase is required, Agrippa shall, in cooperation with the Customer, draw up a plan for such phase. The plan shall include a description of roles and responsibilities, as well as a progress plan. To the extent that installation, configuration, customization and/or integrations have been agreed upon, the progress plan and role distribution for this shall also be described in the plan.
The Parties may also enter into a separate agreement regarding the establishment phase.
Unless otherwise agreed between the Parties, the Services shall be deemed accepted by the Customer at the earliest of when the Customer (i) starts using the Services or (ii) pays its invoice.
3. THE SERVICE
- decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from any component of the Services;
- allow third parties to gain access to the Services, or sublicense, transfer, sell or otherwise assign its account at the Services or the Services itself to any third party;
- alter, embed into any other product or otherwise create derivative works of, or otherwise modify the Services;
- remove, alter or obscure any proprietary notices on or in the Services;
- interfere with or disrupt the integrity of the Services, or any software or data included therein;
- attempt to gain unauthorized access; or
- interfere with other customers’ or users’ use of the Services.
4. SUPPORT AND SERVICE LEVELS
Agrippa shall exercise professional skill and care in providing the Services. The service levels for the Services are set out here: https://agrippa.no/support/
Agrippa shall have no obligation to provide support, by any means, to any entity or individual other than as specified in the Agreement.
5. PRICES AND PAYMENT TERMS
All prices and conditions for the prices to be paid by the Customer for the Services, including prices for any third-party deliverables included in the Services, are specified in the Order Form.
The currency to be used for the pricing and invoicing is the Norwegian kroner (NOK).
5.2 Payment terms
The fees for the Services shall be invoiced [quarterly in advance].
All fees under the Agreement are stipulated exclusive of customs, taxes (including VAT), and other duties.
Unless otherwise agreed, payment shall fall due 14 days of the invoice date.
5.3 Price adjustments
Agrippa is entitled to adjust the fees payable under the Agreement for the Services in line with Agrippa’s then-current prices and charges. Such an adjustment shall be announced in writing not less than 1 month prior to an adjustment. If the Customer does not accept an adjustment, the Customer may terminate the Agreement with at least 21 days written notice prior to the date any such price adjustment is to become effective.
The above termination right does not apply to yearly adjustments from and including the new calendar year, in accordance with the changes in the Norwegian Consumer Price Index, nor adjustments to the extent that rules or administrative decisions pertaining to public taxes are amended in a way that affects the consideration or costs of Agrippa.
5.4 Late payment
If the Customer does not pay at the agreed time, Agrippa may claim interest on the amount which has fallen due for payment, in accordance with Act no. 100 of 17 December 1976 concerning interest on late payments, etc. (the Norwegian Interest Act).
Agrippa may also suspend the Customer’s access to the Services until payment is made.
6. USE OF CUSTOMER DATA
The utilization of the Services is dependent on the Services being granted access to certain data provided by the Customer (“Customer Data”). Such Customer Data are collected through integration with the Customer’s hardware components and/or existing data systems or otherwise provided by the Customer, as applicable.
6.2 Responsibility for Customer Data
Agrippa waives any and all liability for any loss of, errors, or defects in Customer Data. No claims based on errors or defects in Customer Data or loss of Customer Data may be made against Agrippa unless such error, defect, or loss is caused by wilful misconduct or gross negligence by an authorised Agrippa representative.
6.3 Rights to Customer Data
Subject to the below, Agrippa processes the Customer Data only to the extent necessary to provide the Services to the Customer.
The Customer grants Agrippa a non-exclusive, perpetual, non-revocable, worldwide, and royalty-free license to use Customer Data from the Services in an aggregated and anonymised form. The Customer agrees and accepts that Agrippa may freely use such anonymised data, including for statistics, analysis, and development of Agrippa’s services.
7. PERSONAL DATA
Any processing of personal data in connection with the performance of this Agreement, if relevant, is governed by Agrippa’s standard data processing agreement, which is available here:
8. INTELLECTUAL PROPERTY RIGHTS AND INFRINGEMENT
8.1 Intellectual Property Rights
Intellectual property rights (“Intellectual Property Rights“) shall include patents, inventions (patentable or not), copyrights, design, trademarks, technical specifications, database rights, data, technical specifications, source codes, and object codes of software programs and parts thereof, trade secrets, data and any documentation related to such rights and the know-how and goodwill thereto, and any other intangible assets existing or subsisting, whether registered or not, anywhere in the world.
Unless otherwise explicitly agreed, nothing in this Agreement shall be construed as a transfer, in whole or in part, of the Customer’s or Agrippa’s Intellectual Property Rights, and the ownership of such Intellectual Property Rights shall vest in the Party to which it belongs. Agrippa and its licensors shall retain all rights, title, interest and Intellectual Property Rights related to the Services and appurtenant software and documentation, as well as any updates, modifications, improvements, and derivatives thereof.
Each Party (the “Indemnifying Party“) will settle and/or defend at its own expense and indemnify the other Party (the “Protected Party“) against any cost, loss, or damage arising out of any claim, demand, suit, or action brought against the Protected Party to the extent that such claim, demand, suit, or action is based on a claim that the Indemnifying Party’s Intellectual Property Rights (including Customer Data) infringes upon any Intellectual Property Rights of any third party, provided that:
- The Protected Party promptly informs the Indemnifying Party in writing of any such claim, demand, action or suit;
- The Indemnifying Party is given control over the defence or settlement thereof and that the Protected Party cooperates in the defence or settlement.
The Indemnifying Party agrees that in negotiating any settlement pursuant to this clause, it shall act reasonably and shall consult with the Protected Party before agreeing on any settlement.
The foregoing section states the sole liability of the Indemnifying Party and the exclusive remedy of the Protected Party in connection with infringement of Intellectual Property Rights.
8.3 Agrippa’s options in the event of infringement and limitation of liability
If a claim, demand, suit, or action alleging infringement is brought or Agrippa believes one may be brought, Agrippa shall have the option at its expense to:
- modify the Services to avoid the allegation of infringement, while at the same time maintaining substantial compliance with this Agreement;
- obtain for the Customer, at no cost to the Customer, a right to continue utilisation of the Services in accordance with the Agreement free of any liability or restriction; or
- if neither of the previous options is commercially feasible in Agrippa’s reasonable opinion, Agrippa may terminate the Agreement immediately upon notice to the Customer and shall in case of termination repay any prepaid fees related to the provision or use of the Services to be received or used by the Customer after the expiration or the termination of the Agreement takes effect.
Notwithstanding the above, Agrippa shall have no responsibility for claims arising from:
- modifications of the Services by the Customer or any third party;
- combination or use of the Services with the Customer or third-party hardware or software not supplied by Agrippa if such claim would not have arisen for such combinations or use;
- Agrippa’s modification of the Services in compliance with written specifications provided by the Customer;
- use of other than the latest version of the Services provided to the Customer by Agrippa if the use of the latest version would have avoided the infringement; or
- use of the Services outside the scope or in breach of this Agreement.
9. BREACH OF CONTRACT
A Party’s non-compliance with its obligations under the Agreement will constitute a breach of contract. The Parties shall use their reasonable efforts to remedy the breach without undue delay.
The non-breaching Party must give written notice of the breach without undue delay after the breach of contract has been discovered or should have been discovered.
9.2 Material breach
A breach of the Agreement shall be deemed as a material breach if the violating Party has not remedied the breach within a reasonable amount of time after receipt of written notice from the other Party specifying the breach and that this Agreement will be terminated if the breach has not been remedied within the same amount of time after reception of the notice.
10. LIMITATION OF LIABILITY
Except for any standard compensation agreed in writing between the Parties, Agrippa will not be liable for errors or delays in the Services, including technical mistakes, interruptions, and inaccuracies.
Each Parties’ liability under the Agreement shall not exceed the Party’s direct loss. Neither Party shall be liable to the other Party for any incidental, special, consequential, or indirect damages of any kind (including without limitation damages for interruption of business, loss of data, loss of profits, loss of goodwill, use, or the like).
The maximum annual liability of Agrippa towards the Customer related to the Agreement shall not exceed in aggregate 15 % of the total remuneration, exclusive of VAT, paid under the Agreement during the last 12 months.
The limitations of liability set out above will not apply if the Party in question has acted wilfully or with gross negligence.
11. TERM AND TERMINATION
The Agreement enters into force on the date set out in the Order Form (the “Effective Date“). Unless otherwise agreed, the Agreement shall have an initial term (and may not be terminated for convenience) commencing on the Effective Date and ending on the [third anniversary] thereof (the “Initial Agreement Period“). After the Initial Agreement Period, the Agreement shall continue until terminated by either Party by giving 6 months’ prior written notice to the other Party. Such notice may be given 6 months prior to the end of the Initial Agreement Period at the earliest.
11.2 Termination for cause
Either Party may terminate the Agreement if the other Party is in material breach of the Agreement.
If any overdue consideration has not been paid within 15 calendar days of the due date, Agrippa may give the Customer written notice that the Agreement will be terminated if a settlement has not been made within 15 calendar days of receipt of such notice.
Either Party may terminate the Agreement upon written notice to the other Party if the other Party becomes insolvent or is unable to pay its debts as they fall due or goes into liquidation either voluntarily or as required by law.
11.3 Effects of termination
Upon expiration or termination of the Agreement
- the Customer and its Users shall immediately cease all use of the Services;
- the Customer shall immediately pay all outstanding amounts, whether due or not, to Agrippa; and
- the Customer shall return or destroy, as instructed by Agrippa, all documentation and Confidential Information provided by Agrippa.
During the term of this Agreement and for a period of 6 months following its expiration, upon Agrippa’s request, but not more than twice each year and upon reasonable notice, the Customer will permit Agrippa to perform an audit of the Customer’s records and computer systems that are relevant to Customer’s use of the Services in order to confirm the Customer’s compliance with this Agreement.
Agrippa will conduct any audit during the Customer’s normal business hours. The Customer shall immediately pay Agrippa the amount of any additional fees that are found to be payable under this Agreement as a result of any audit. If an audit reveals that the Customer has underpaid any fees by more than 5 % of the amount properly payable, the Customer shall reimburse Agrippa for Agrippa’s entire cost of conducting the audit.
The Agreement and any business-specific information disclosed by either Party to the other (whether oral or written or in visual, electronic, or tangible form), including Intellectual Property Rights, shall be regarded as “Confidential Information“.
Neither Party shall disclose to any third party, neither during nor after the term of this Agreement, any Confidential Information, except for purposes consistent with the administration and performance of a Party’s rights or obligations under this Agreement, or as required by law.
Any information being publicly available, independently developed or rightfully obtained from third parties without breach of any non-disclosure obligation shall not be regarded as Confidential Information.
The receiving Party shall immediately notify the disclosing Party in writing of any unauthorised disclosure of Confidential Information and shall take all reasonable steps to mitigate any harmful effect of such unauthorised disclosure.
14. FORCE MAJEURE
If the performance of this Agreement is prevented in whole or in part, or is materially hindered by circumstances outside the Parties’ control, the Parties’ obligations (except for the obligations to make payments when due hereunder) shall be suspended to the extent that the circumstances are relevant and for as long as the circumstances persist. Such circumstances include, but are not limited to, strikes, natural disasters, power loss, internet downtime, lockouts, and cyber-attacks or the equivalent caused by any malicious code, tools, or device that are designed to disable or disrupt systems, provided that the Party has installed and maintained industry standard information security defence to protect against foreseeable cyber-attacks as well as consequences of pandemics including measures laid down by public governmental bodies or corporate policies to mitigate consequences of or health risk related to pandemics at any time.
Each of the Parties may terminate this Agreement by giving 1 month’s written notice if the force majeure situation lasts for more than 90 days or makes it particularly burdensome for the Party in question to meet its obligations under the Agreement.
15.1 Use of subcontractors
Agrippa may engage subcontractors to fulfil its obligations under this Agreement. Agrippa shall remain liable towards the Customer for the performance of any subcontractor.
Agrippa may assign its rights and obligations under the Agreement to an entity within Agrippa’s group.
The Customer may not assign the Agreement without the prior written consent of Agrippa, which shall not be unreasonably withheld.
Any notice required or permitted hereunder (other than communication between the Parties for operational purposes, or as otherwise specified by a Party) shall be in writing and shall be sent by prepaid registered mail or by e-mail to the address designated by a Party at any time.
15.4 Independent contractors
The relationship between the Parties arising from the Agreement shall not constitute or create any joint venture, partnership, employment relationship, or franchise between them, and the Parties are acting as independent contractors in making and performing the Agreement.
Agrippa may, at any time, amend or modify the provisions of these Terms. If an amendment made by Agrippa is materially disadvantageous to the Customer, the Customer may terminate the Agreement by giving written notice to Agrippa.
Continued use of the Services after a revised version of these Terms is posted at the website mentioned below will be conditional upon the version of the Terms that is in effect at the time of the use. The latest version of the Terms is available here:
Any rights, obligations, liabilities, or duties of the Parties under the Agreement that are intended to survive the termination or expiration of the Agreement, shall survive the termination or expiration of the Agreement, including the Parties’ respective rights, obligations, liabilities, and duties (and any limitations thereon) set forth in clauses 10 and 12.
16. GOVERNING LAW AND LEGAL VENUE
The Agreement shall be governed by and construed in accordance with the laws of Norway.
Any dispute, controversy, or claim arising out of or relating to the Agreement, or the breach, termination, or invalidity thereof, the Parties shall seek to solve amicably through negotiations.
If the Parties fail to solve such dispute, controversy, or claim amicably, either Party may refer any dispute or difference to be finally settled by the Courts of Norway with [Oslo City Court] as legal venue.