Agreement terms – IWMAC subscription

1. GENERAL PROVISIONS

This Agreement concerns the ongoing provision of services related to IWMAC's solutions.

2. THE PARTIES’ OVERALL RESPONSIBILITY

2.1        THE SUPPLIER’S RESPONSIBILITY

IWMAC (the supplier) is responsible for ensuring that the service delivered is in accordance with this Agreement. For services for which no explicit service level requirements are specified, the service level must be equivalent to what can be expected of a standard equivalent good service in the market.

The supplier is responsible for performing the service in a professional and professional manner with employees who are qualified and competent for the purpose.

2.1.1       Telephone

Unless otherwise agreed, the agreement includes telephone support 24 hours / day of the Supplier's software.

2.1.2       WEB-access to the plant

Agreement includes Customer web access to the plant. Through the agreement, the customer can freely define the number and which users will have access to the plant. The web access shall cover functionality such as overview of plant status, alarms and the alarm service, direct connection to the plant for service, as well as other graphical presentation of plant data.

2.1.3       Alarm service

The agreement includes that the Customer could receive alarms from the plant as an SMS, or if further described other additional service.

The customer must, through the supplier's solution, manage access to its own users who will receive alarms (at least one (1) person), and is responsible for managing users.

The alarms are sent to the users who are on duty for the plant, and to those who are on copy. The Supplier cannot be held liable if the Customer or receivers on-duty are unavailable.

The supplier can not be held liable if the services from telecom operators, internet providers are out of order.

The customer agrees through the agreement that users defined in the shift list scheme, shall receive alarm messages from the Supplier (this regardless of whether alarms are sent as SMS or direct telephone call).

2.1.4       Smarte Functions(option)

The agreement does not include Smart Functions unless this is described or ordered explicitly. The service includes access and maintenance of agreed functions.  

2.1.5       Open API/Data sharingI(option)

The agreement does not include the data sharing/Open API module unless this is described or ordered explicitly. The module requires that the system is already running IWMAC and only gives the customer access to data according to the agreed amount of data. Data is shared with the customer's partners only with the consent of the customer and at the customer's responsibility.

The module may also offer simple data collection, but does not include monitoring, support and maintenance of such data collection, unless this is specified in the agreement with the customer.

2.1.6       Availability

Availability of the service from the central system is 99.9% (central server).

2.1.7       Data storage

The agreement includes storage of screens, system settings and controller setup throughout the agreement period. Log data from the plant is stored on the central server at the Supplier and if possible, on the local Web server. Data older than 5 years can be removed unless otherwise required

2.1.8       Upgrade/maintenance

The service includes standard upgrades and general maintenance of the supplier's software. The supplier is responsible for testing and necessary upgrades of the service to fulfil the agreement. The agreement does not include changes in configurations, adaptations and / or integrations for the Customer as a result of standard upgrades.

The agreement only applies to the current version of the service that has been made available to the Customer.

2.1.9       Documentation

All necessary user manuals are distributed electronically by making it available on delivered equipment or by downloading.

The supplier is responsible to update the user manuals in accordance with software upgrades. New user manuals will be made available in electronic format for downloading or e-mail to the customer. User documentation in paper format can be ordered separately at the request of the customer.

2.1.10     Limitations

The agreement does not cover the following elements unless specified:

1. adaptation to other software at the Customer's disposal.
2. training of users of 3-party software (use, functionality, operation, including automation assistance) that is not provided by the Supplier.
3. attendance at the Customer for repair / maintenance of Web server or software.
4. service at the facility itself.
5. that the Supplier is part of the on-call scheme for the facility itself.
6. Configurations, changes to overviews, or adjustments that are subsequently requested by the Customer, and which are not included in the original operating agreement. The customer must request a special offer for such changes.

2.1.11        4G subscription(option)

If specified in the offer, the Supplier delivers a data subscription as part of the solution. The agreement will then include, but be limited to, the agreed monthly data subscription cost. Significant costs beyond what is described in the agreement will be post-invoiced.

The data subscription shall only be used for IWMAC's equipment and solutions. Equipment provided by the Supplier will be delivered with measures to prevent misuse of the data subscription. Use of the data subscription for solutions other than agreed in writing is considered a breach by the Customer. The customer will be responsible for any costs associated with such a default.

The supplier is responsible for the service being delivered in accordance with the telecom operator's current service level.

2.1.12     Hardware agreement(option)

If specified in the offer, the devices / hardware described in the agreement will be delivered as a service and be the supplier's property. The service includes SMS notification, operating system upgraded and maintained in accordance with the Supplier's recommendations and that the Supplier is responsible for ensuring that software and hardware work for the specified devices. In the event of faults or deficiencies in units that must be resolved locally, the Supplier will send a replacement unit set up and ready for installation at no extra cost.

The customer shall without undue delay complain to the supplier of any errors, defects, delays, etc. All complaints must be made in writing. The customer is obliged to secure, maintain and use the specified units in a good and responsible manner, and in accordance with the units' instructions. Installation of 3rd party software or equipment without agreement with the Supplier is considered a breach of the agreement. In the event of a breach of SMS notification, costs in addition to what is included in the agreement will be post-invoiced.

2.1.12     Energinet EOS(option)

If specified in the offer, the Supplier delivers the EOS system Energinet either independently or as part of the Supplier’s solution. Unless otherwise agreed, the service includes access to Energinet EOS with its services, access to all new official versions / updates of the supplier’s software and, assistance and support of the service on all normal working days between 08: 00-16: 00.

Energinet EOS does not include:

1. Reconstruction or rescue of lost or damaged data / files that are not under the Supplier's control.
2. Meters, loggers, sensors or devices and equipment that have not been delivered and invoiced by the Supplier, but are linked to the Supplier's product / system.
3. Adaptation and development of data / format readers from or to other third party software.
4. Troubleshooting / troubleshooting caused by hardware or software other than that to which this Agreement applies.
5. Troubleshooting / search caused by external actors, other than the customer's employees, than what this agreement applies to.

2.2        THE CUSTOMERS RESPONSIBILITY

Equipment delivered by the Supplier shall be placed in a normal indoor environment. By this is meant vibration-free, normal indoor temperature and moderate amounts of dust. Damage and repairs to equipment as a result of dust, moisture, impact, overheating or the like are not covered by the agreement. No other than the Supplier's software or solutions shall be installed on the delivered equipment.

The Customer is responsible for carrying out the necessary upgrades and securing its own technical platform, if this is required for the Supplier's services to work as agreed.

The supplier is not responsible for integration with other equipment and / or software or errors caused by integration made by the customer, without a written agreement.

The Customer is responsible for implementing, as well as maintaining and routing the network traffic in a secure manner in the local network and the connection to the Supplier's central server.

The Customer is responsible for ensuring that its personnel - or equivalent third parties - have adequate competence and knowledge to serve the Supplier's services.

3.  CONSIDERATION AND TERMS OF PAYMENT

3.1        CONSIDERATION

Unless otherwise stated, all prices are stated in Norwegian kroner and excluding VAT, but customs duties and any other indirect taxes.

The Supplier reserves the right to conduct an audit of the Customer’s use of the service, in order to verify that the consideration paid is in accordance with the Agreement in terms of the number of users/locations or similar conditions. Reasonable notice of such audits must be given, and they will be conducted with the least possible inconvenience to the Customer.

3.2        INVOICING DATE AND TERMS OF PAYMENT

The agreement is invoiced up to 6 (six) months in advance. Payment terms are net 14 (fourteen) calendar days, first time no earlier than fourteen (fourteen) calendar days after delivery date. 

3.3        LATE PAYMENT INTEREST

If the Customer does not pay at the agreed time, the Supplier 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).

3.4        PAYMENT DEFAULT

If overdue, undisputed consideration, with the addition of interest on late payment, has not been paid within thirty (30) calendar days of the due date, the Supplier may give the Customer written notice that the Agreement will be cancelled if settlement has not been made within sixty (30) calendar days of receipt of such notice

Cancellation may not take place if the Customer settles the overdue consideration, with the addition of late payment interest, prior to the expiry of the deadline.

3.5        PRICE ADJUSTMENTS

Suppliers reserve the right to adjust the prices of the agreement. Information about price changes will normally be informed on the supplier's website and is normally made in January each year. The basis for price changes will be changes in the general cost level, extended functionality, other upgrades in the product or service and changes in exchange rates that affect delivery.

The customer is aware that all changes to the plant can have consequences for the service price.

4. DURATION, CANCELLATION AND TERMINATION

4.1        DURATION

Unless otherwise agreed, the Agreement enters into force on the date it is signed by the parties and the Supplier has confirmed that the service has been implemented.

Unless otherwise agreed, the duration of the agreement is a minimum of 12 (twelve) months, calculated from the delivery date, then the agreement is renewed automatically, unless it is terminated in writing with 3 (three) months notice valid from the 1st (first) of the following month.

4.2        CANCELLATION

The Customer may cancel the service contracted under this Agreement in full or in part by giving 3 (three) months’ written notice. The agreement can not be cancelled during the first 12(twelve) months.

In the event of cancellation, the Customer shall pay the consideration for the remaining agreement period.

The termination period lasts from the 1st (first) of the month following the notice of termination, cancellation or cancellation and for 3 (three) months until the agreement terminates. The service shall remain full during the termination period, regardless of the reason for termination. At the end of the termination period, the Supplier's software will be uninstalled locally at the plant.

5.  INFORMATION SECURITY AND PERSONAL DATA PROTECTION

Handling of information security and personal data is regulated in the current Data Processor Agreement between the Data Controller and the Data Processor.

5.1        THE RIGHTS OF THE PARTIES

This agreement does not change the copyright, disposition or property rights the parties had before the agreement, and which they retain during the implementation of the agreement. Access to the service includes all the powers necessary to use the service in accordance with the purpose of the agreement. Unless otherwise agreed, no intellectual property rights are transferred to the Customer. The customer also does not have exclusive access to the service unless this is specifically agreed. 

5.2        RIGHT OF OWNERSHIP OF DATA

The Customer will retain the right of ownership of all data that is entrusted to the Supplier for processing, and which is stored or processed with the help of the services under this Agreement. The supplier reserves the right to use anonymised data.

6. BREACH AND SANCTIONS

6.1        BREACH OF CONTRACT ON THE PART OF THE SUPPLIER

The Supplier will be in breach if the service does not correspond to the agreed functions, requirements or deadlines.

No breach will exist, however, if the situation is due to the Customer's circumstances or force majeure, or if the matter is subject to the limitations of liability concerning third-party deliverables.

The Customer must give written notice of the claim without undue delay after the breach of contract has been discovered or should have been discovered.

6.1.1       Notice obligation

If the Supplier is unable to fulfil its obligations as agreed, the Supplier must give the Customer written notice of this as soon as possible. The notice must specify the reason for the problem and, as far as possible, when the service can be delivered. The same will apply if it can be assumed that further delays will occur after the first notice has been given.

6.2        SANCTIONS IN THE EVENT OF BREACH

6.2.1       Rectification and price reduction

On any breach by the Supplier, it is the Supplier's responsibility to rectify the error in such a way that the service once again corresponds to the Agreement. The error must be rectified as soon as possible.

If, despite repeated attempts, the Supplier has not succeeded in rectifying the defective service, the Customer may claim a proportional price reduction.

6.2.2       Suspension of services

In the event of a breach of contract on the part of the Supplier, the Customer may withhold payment, although not by a higher amount than is necessary to secure the Customer's claim as a consequence of the breach of contract.

6.2.3       Cancellation

In the event of material breach of contract by the Supplier, after giving the Supplier written notice and a reasonable deadline to remedy the situation, the Customer may terminate the Agreement with immediate effect.

6.2.4       Limitation of liability

Compensation for indirect losses cannot be claimed. Indirect losses include, but are not limited to, lost profits of any kind, lost savings, loss of data and claims from third parties with the exception of awarded liability for legal defects.

Total compensation per calendar year is limited to an amount corresponding to the agreement's total annual remuneration excl. VAT.

The limitation of liability will not apply, however, if the Supplier, or any party for which it is responsible, has shown gross negligence or wilful misconduct, but in any case the compensation is regulated in relation to the Contractor's liability insurance.

6.3        CUSTOMER BREACH AND SANCTIONS AGAINST BREACH

6.3.1       Breach and claims

There is breach of contract by the Customer if the Customer fails to fulfil its obligations under the Agreement.

In the event of payment default by the Customer, see clauses 3.4.

Nevertheless, no breach will exist if the situation is due to circumstances related to the Supplier, or force majeure.

6.3.2       Notice obligation

If the Customer is unable to fulfil its obligations as agreed, the Customer shall give the Supplier written notice of this as soon as possible. The notice shall specify the reason for the problem and, to the extent possible, when the Service can be delivered. The same will apply if it can be assumed that further delays will occur after the first notice was given.

6.3.3       Cancellation

In the event of material breach by the Customer, after giving the Customer written notice and a reasonable deadline to rectify the situation, the Supplier may terminate the Agreement with immediate effect.

7.  FORCE MAJEURE

If an extraordinary situation should arise which makes it impossible to fulfill obligations under this Agreement, and which under Norwegian law must be classified as force majeure, the other party must be notified of this as soon as possible. The obligations of the affected party shall be suspended for as long as the extraordinary situation prevails. The corresponding obligations of the other party shall be suspended for the same period.

In force majeure situations, the other party may only end the Agreement with the consent of the affected party, or if the situation prevails or is expected to prevail for more than ninety (90) calendar days as of the date on which the situation arose, and in such case only with fifteen (15) calendar days’ notice. Each of the parties will cover their own costs associated with ending the contractual relationship. The Customer will pay the agreed price for the part of the Service that was contractually delivered before the expiry of the Agreement. The parties may not present other claims against each other due to the expiry of the Agreement in accordance with this provision.

In connection with force majeure situations, the parties have a mutual disclosure obligation towards each other regarding all matters that must be deemed to be relevant to the other party. This information must be provided as quickly as possible.

8.  OTHER PROVISIONS

8.1        ASSIGNMENT OF RIGHTS AND OBLIGATIONS

The Customer may only transfer his rights and obligations under the agreement with the written consent of the Supplier. The Contractor may transfer its rights and obligations under the agreement if the Contractor is divided into several companies, the transfer takes place to a subsidiary, another company in the same group or if the Contractor is merged with another company.

The right to consideration under this Agreement may be assigned freely, but will not release the Supplier from its obligations and responsibilities in accordance with this Agreement.

8.2        CONFIDENTIALITY OBLIGATION

Confidential information of which the parties become aware in connection with the Agreement and the implementation of the Agreement must be kept confidential, and may not be disclosed to any third party without the consent of the other party.

The confidentiality obligation shall not prevent the information from being used when there is no legitimate interest in keeping it confidential, for example when it is in the public domain or is accessible to the public elsewhere.

The Parties shall take all necessary precautions to prevent unauthorised persons from gaining access to, or knowledge of, confidential information.

The confidentiality obligation shall apply to the parties' employees, subcontractors and any third parties who act on behalf of the parties in connection with the performance of the Agreement. The parties may only transfer confidential information to such subcontractors and third parties to the extent necessary for the implementation of the Agreement, provided that they are subject to a confidentiality obligation corresponding to this clause.

The confidentiality obligation does not preclude the parties from using the experience and expertise gained in conjunction with the performance of the Agreement.

The confidentiality obligation will continue to apply after the expiry of the Agreement. Employees or other persons who resign from a position with one of the parties will, following their resignation, continue to be subject to the confidentiality obligation concerning the aforementioned circumstances. The confidentiality obligation will lapse five (5) years after the expiry of the Agreement, unless otherwise stipulated by law or regulations.

8.3        COMMUNICATION IN WRITING

All notices, demands or other notifications relating to this Agreement shall be given in writing to the electronic address stated on the first page of the Agreement, unless the parties have agreed a different procedure for this type of contact.

9.  DISPUTES

9.1        GOVERNING LAW

The rights and obligations of the parties under this Agreement shall in their entirety be governed by Norwegian law.

9.2        NEGOTIATIONS AND MEDIATION

Should a dispute arise between the parties as to the interpretation or the legal effects of the Agreement, the parties shall first seek to reach agreement through negotiations and/or mediation.

9.3        LITIGATION OR ARBITRATION

If a dispute is not resolved through negotiations or mediation, each party may require such dispute to be resolved with final effect before the Norwegian courts of law.

The venue shall be the legal venue of the supplier.

The parties may alternatively agree that the dispute shall be resolved with final effect through arbitration.