GENERAL TERMS AND CONDITIONS OF PURCHASE
1 OUR RELATIONSHIP WITH YOU
1.1 Glitre Energiløsninger AS is a company providing reliable energy data using cutting-edge technology and has developed an energy consumption monitoring and analysis service consisting of hardware sensors and a cloud-based data platform, which enables insight into energy consumption on which to base consumption- and cost-reducing measures ("SmartEO").
1.2 These terms and conditions (hereinafter referred to as "Terms and Conditions") govern the relationship between Glitre Energiløsninger ("GEL", "us" or "our") and our customers' (the "Customer", "you" or "your") each of which a "Party" and jointly referred to as the "Parties", ordering of SmartEO through our online ordering system (the "SmartEO Portal").
1.3 By submitting an order through the SmartEO Portal, the Customer accepts, and accepts to be bound by, these Terms and Conditions and to abide by the regulations set out herein for all matters concerning or related to the Customer's purchase of the SmartEO through the SmartEO Portal. By submitting an order in the SmartEO Portal, you confirm that you have all necessary authorizations to accept these terms on behalf of the organization you represent.
1.4 These Terms and Conditions, together with any other terms and conditions presented to you in the SmartEO Portal and as otherwise incorporated by reference herein, constitutes a legally binding agreement between you and GEL, regarding your SmartEO purchase.
2.1 These Terms and Conditions grant the Customer the right to purchase and use SmartEO subscriptions ("Subscriptions") as part of its commercial offering to its customers (the "End- Customers").
2.2 SmartEO PortalThe relationship between the Customer and GEL under these Terms and Conditions is of a non-exclusive nature, it being understood that GEL is free to sell SmartEO and related services to other customers, including customers providing the same or similar services to those of the Customer.
3 THE SMARTEO SERVICE
3.1 A general description of the SmartEO service, its features and functionality is available on GEL's website.
3.2 The Customer accepts that GEL may make any such further developments, alterations or changes to the SmartEO service, its technical infrastructure, or any other parts of the SmartEO service, as are deemed necessary or appropriate by GEL in its sole discretion, provided that such changes shall not result in the removal of functionality or degradation in performance of SmartEO for the Customer.
3.3 The Customer further accepts that GEL may, by written notice to the Customer, update or amend any documents available on GEL's website and in the SmartEO Portal. to reflect such changes to the SmartEO service implemented by GEL.
3.4 GEL may at any time change the name of, or otherwise re-brand, the SmartEO service and any logos or marks associated therewith at its sole discretion.
3.5 Information about prices and the types of Subscriptions offered for the SmartEO service are described in the documentation available in the SmartEO Portal. GEL may revise the Subscription models offered for SmartEO (e.g. by offering new types of subscriptions or amended pricing models) at its discretion, without affecting the validity of Subscriptions already purchased by the Customer. GEL may also introduce subscriptions for new SmartEO. New or revised subscriptions or pricing models for SmartEO will be made available in the SmartEO Portal.
4 INTERPRETATION, ORDER OF PRECEDENCE, AND LANGUAGES
4.1 Interpretation and order of precedence
4.1.1 The documentation provided in the SmartEO Portal in connection with the Customer's order form an integral part of these Terms and Conditions with respect to the rights and obligations of the Parties hereunder. Unless otherwise expressly stated, these Terms and Conditions shall prevail in the event of conflicts or inconsistencies between the aforesaid.
4.1.2 Other documents prepared to support the delivery of the SmartEO service shall not change the scope or content of the agreement between you and GEL.
4.1.3 Except as expressly provided for in these Terms and Conditions, the Terms and Conditions may not be varied except by an agreement in writing expressed to vary these Terms and Conditions signed by the duly authorized representatives of both Parties.
4.2.1 These Terms and Conditions and all related documents, instruments, and other materials relating hereto shall be in the English language and, notwithstanding their translation into Norwegian or any other language for information purposes, the English language version shall in all circumstances prevail.
4.2.2 The Parties acknowledge and agree that the English language version of these Terms and Conditions is and shall be considered the true representation of the Parties' intent, commitments, rights, and obligations and that only the English language version may be invoked in respect thereof.
5 GENERAL OBLIGATIONS OF THE PARTIES
5.1 Customer obligations
5.1.1 The Customer shall adhere to the terms set out herein in connection with its purchasing of SmartEO Subscriptions through the SmartEO Portal, and be solely responsible for the use of SmartEO in its offering to End-Customers.
5.1.2 The Customer may incorporate its use of SmartEO in the services it provides to End-Customers, and shall be responsible toward the End-Customers for all direct End-Customer interactions in respect of SmartEO or any data or analyses derived therefrom.
5.1.3 The Customer shall use its own software and methods for processing SmartEO data provided in accordance with Clause 5.2.3 and shall be responsible for any further analyses and applications thereof.
5.1.4 The Customer shall (i) procure for GEL the necessary access to the End-Customers' premises for GEL to perform its obligations pursuant to Clause 5.2.4 within a reasonable time and at the latest within two (2) months of ordering the SmartEO Subscription; and (ii) facilitate the necessary lines of communication between GEL and the End-Customer in this respect and for information purposes regarding hardware components with GEL ownership; and (iii) register the End-Customer's contact details as specified at the time of order. If the Parties have agreed on a different installation arrangement, the Customer shall ensure that the hardware components are installed on the End-Customers' premises within two (2) months.
5.1.5 The Customer shall have in place its own contracts with the End-Customers governing its provision of services and the incorporation of SmartEO therein, and be solely responsible toward the End- Customers for the fulfillment of such contracts.
5.1.6 The Customer's End-Customer contracts shall incorporate terms safeguarding GEL's rights pursuant to this Agreement and including, without limitation, as set out in Clauses 8 and 9 , and the Customer shall not under any circumstances agree to End-Customer terms more restrictive towards GEL than the terms set out herein.
5.1.7 The Customer is responsible for ensuring that the invoicing details registered in the SmartEO Portal are accurate and correct at all times.
5.2 GEL obligations
5.2.1 Conditioned upon the continued and timely payment of the applicable Subscription Fees (as defined in Clause 7.1.1 ), GEL shall provide the Customer with access to the SmartEO platform and all necessary sensor hardware for installation at the End-Customers' premises.
5.2.2 Unless otherwise agreed, GEL's provision of access to the SmartEO platform pursuant to Clause 5.2.1 will consist of granting access to a SmartEO application programming interface ("API"), and the continuous provision to the Customer of disaggregated data collected from sensors installed on the End-Customers' premises.
5.2.3 The access to SmartEO, including any associated hardware, is provided on an as-a-service basis, meaning that no ownership in SmartEO or the hardware components is transferred to the Customer or the End-Customers.
5.2.4 GEL shall install the SmartEO hardware components on the End-Customer premises for which the Customer has purchased subscriptions. Consideration for such installation is included in the Subscription Fee (as defined in Clause 7.1 ). GEL is responsible for the continued maintenance of the SmartEO hardware and software components for the duration of the Subscription Term (as defined in Clause 7.2 ). Unless otherwise agreed between the Parties, GEL is responsible for the continued maintenance of the SmartEO hardware and software components for the duration of the Subscription Term (as defined in Clause 7.2 ).
5.2.5 GEL shall provide the SmartEO service in accordance with the applicable service level requirements (the "Service Levels"), as made available on GEL's website.
6 DISCLAIMER OF WARRANTIES
6.1 With the exception of the Service Levels applicable to the SmartEO service pursuant to Clause 5.2.5 , and to the extent permitted by applicable law, any access granted to SmartEO to the Customer and End-Customers by GEL is provided on an "as is" and "as available" basis only. GEL makes no representations or warranties regarding the usefulness or effectiveness of SmartEO or the results the Customer may obtain by using the SmartEO service. Nor does GEL make any representations or warranties that the SmartEO service will be uninterrupted, error-free, that it is completely secure or that the data provided by the SmartEO service will be completely accurate or represent a complete picture of the End- Customers' energy consumption.
6.2 The Customer's sole remedy with respect to any defects or errors in the SmartEO service shall be GEL's obligation to use all commercially reasonable efforts restore the service in accordance with the Service Levels, and to re- perform and deliver again the affected parts of the SmartEO service to bring it into compliance with the service descriptions made available by GEL as soon as reasonably possible.
7 COMMERCIAL TERMS
7.1 SmartEO prices
7.1.1 In consideration of the SmartEO service, the Customer shall pay to GEL the recurring monthly Subscription fees in accordance with the prices set out for each of the Customer's orders in the SmartEO Portal (the "Subscription Fee") for the duration of the Subscription Term (as defined in Clause 7.2 below).
7.1.2 Unless otherwise explicitly stated when placing an order in the SmartEO Portal, the Subscription Fee includes all such hardware and software maintenance as is necessary for the SmartEO service to function as intended.
7.2 Subscription Term and termination
7.2.1 Each Subscription purchased by the Customer through the SmartEO Portal has a fixed term as indicated when placing the order in the SmartEO Portal (the "Initial Subscription Term"). If no Initial Subscription Term is set out in the order, the Initial Subscription Term for the Subscription shall be three (3) years. After the expiry of the Initial Subscription Term, the Subscription will continue indefinitely on an ongoing basis until it is terminated by either Party subject to three (3) months' written notice (the "Subscription Term").
7.2.2 If, during a Subscription Term, the Customer upgrades, downgrades or expands the Subscription with new or improved components, features, services or functionality, the Subscription Term shall renew for a new Initial Subscription Term as of the date the Subscription is upgraded, downgraded or expanded.
7.2.3 Upon the termination of a Subscription in accordance with Clause 7.2.1 , the Customer shall uninstall and return to GEL all SmartEO hardware components installed on the End-Customer premises covered by the terminated Subscription. Uninstallation shall always be performed in accordance with GEL's specifications and the Customer may only use certified electricians in the performance of such work. GEL may alternatively and in its discretion instruct the Customer to leave the components installed or uninstall and dispose of all or parts of the SmartEO hardware components in lieu of returning them to GEL.
7.2.4 Notwithstanding Clause 7.2.1 , if the SmartEO hardware components are not returned to GEL in accordance with Clause 7.2.3 within the expiry of three (3) month notice period, the Subscription Term will continue until such a time as GEL has received in its possession the SmartEO components in question.
7.3 Invoicing and Payment terms
7.3.1 GEL will invoice the Customer in advance at the intervals set out when placing the order in the SmartEO Portal. If no other invoicing schedule is set out in the SmartEO Portal, the SmartEO service will be invoiced on a monthly basis. Unless otherwise set out in the Customer's order, the first Subscription Fee will be invoiced as of the time the SmartEO hardware components are installed on the End-Customer's premises, provided that the installation is completed within the deadline set out in Clause 5.1.4 . In the event that the SmartEO hardware components are not installed by this deadline, GEL will commence invoicing the Subscription Fee as of the expiry of the deadline. All invoices issued by GEL to the Customer shall fall due for payment fourteen (14) days from the date set out on the invoice.
7.3.2 All invoices will be addressed as specified by the Customer cf. Clause 5.1.7 .
7.3.3 If the Customer does not pay within the agreed time, GEL shall be entitled to interest on any overdue amount in accordance with Act no. 100 of 17 December 1976 concerning interest on late payments, etc. (the Norwegian Interest Act).
7.3.4 GEL reserves the right to assign, sell or otherwise transfer each and all claims and invoices relating to payment of the Subscription Fee to third parties (factoring).
7.4 Price adjustments for active Subscriptions
7.4.1 The Subscription Fee for active Subscriptions may be adjusted at the beginning of each calendar year by an amount equal to the increase in the retail price index (the main index) of Statistics Norway during the course of the preceding calendar year.
7.4.2 The Subscription Fee for active Subscriptions may also be adjusted to the extent that rules or administrative decisions pertaining to public taxes are amended in a way that affects GEL's costs of providing the SmartEO service. In such cases, GEL must notify the Customer, documenting the reason for the increase in the Subscription Fee. The price changes will take effect from the Customer’s receipt of the notice set out in the preceding sentence.
7.5 Other changes to the Subscription Fee
7.5.1 GEL may, at its discretion, change the Subscription Fee or structure thereof from time to time in the SmartEO Portal. Current prices are available upon ordering.
7.6 Other costs
7.6.1 Other than as set out above in this Clause 7 and in the price lists made available in the SmartEO Portal, each Party shall carry its own costs in connection with the provision and receipt of the SmartEO service.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights belonging to a Party prior to the Customer's purchase of SmartEO through the SmartEO Portal shall remain vested and remain the property of that Party.
8.2 For the purposes of these Terms and Conditions, "Intellectual Property Rights" means all current and future rights under applicable patent, copyright, trademark, design, marketing, database and other law as well as other similar or equivalent registrable or non-registrable rights or forms of protection which may now or in the future subsist in any part of the world.
8.3 All right, title and interests, including all Intellectual Property Rights, in and to (i) SmartEO; (ii) new functionalities of SmartEO; (iii) aggregate data concerning the use of SmartEO; (iv) new and/or improved products, services and other materials resulting from GEL's processing of SmartEO Data (as defined below) in accordance with Clause 9.2 ; and (v) any APIs created to accommodate the integration of SmartEO with other software, and other developments designed to facilitate the interaction between the two, is and shall remain the sole property of GEL or its licensors (as applicable).
8.4 The Customer hereby assigns to GEL the ownership of any Intellectual Property Rights related to SmartEO as set out in Clause 8.3 created during the Subscription Term, in full and without any payment to Customer.
8.5 In addition, the Customer agrees that GEL is free to use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer pertaining to GEL's Intellectual Property Rights for the purpose of refining and/or further developing said Intellectual Property Rights, free of any encumbrances and without affecting GEL's rights therein or ownership thereof.
9 LICENSE GRANTS
9.1 SmartEO license
9.1.1 GEL hereby grants the Customer for the duration of the Subscription Term a non-exclusive, non- transferable license to access and use SmartEO for the Customer's own use and for the purposes of providing services based on SmartEO to End- Customers.
9.2 Data license
9.2.1 SmartEO extracts certain types of production and diagnostic data generated by sensors and data collection capabilities in SmartEO and connected systems and hardware, related to energy consumption, other relevant sensor data and the use of SmartEO (collectively, "SmartEO Data").
9.2.2 To the extent applicable, the Customer hereby grants to GEL a perpetual, non-exclusive, non- revocable, royalty-free and worldwide license to collect, aggregate, store, process, transmit, analyze and use SmartEO Data to (i) provide the SmartEO service and support relating to the Customer's and the End-Customers' use of SmartEO; (ii) improve GEL's products and services; and (iii) create new products and services based on processed SmartEO Data.
9.2.3 The Customer is responsible for obtaining sufficient rights from the End-Customers to give effect to Clause 9.2.2 for GEL to use the SmartEO Data.
9.3 White labelling
9.3.1 If the Customer offers SmartEO to End-Customers with customer-facing interfaces or hardware components branded with the Customer's own designs, trade- or business marks and other identifiers of the Customer's established brand, the Customer shall bear all costs connected to such branding, etc.
9.3.2 If applicable, the Parties agree that GEL shall be entitled to label any potential Customer-branded version of SmartEO with identifying information, such as GEL's name and/or logo or the name(s) and/or logo(s) of its products and services (e.g. in the form of a 'Powered by SmartEO, a product by GEL' label).
9.3.3 If relevant, any design components created for the potential Customer-specific branding using the Customer's marks, logos or names subject to the Customer's Intellectual Property Rights shall be the property of the Customer, and the Customer hereby grants to GEL a license to use such Intellectual Property Rights for the purpose of providing the Customer-branded version of SmartEO for the duration of all active Subscriptions.
10.1 The Customer shall indemnify and hold harmless GEL against any and all losses, liabilities and expenses (including reasonable attorneys' fees) suffered or incurred by GEL by reason of (i) any third party claim, suit or proceeding ("Claim") arising out of or relating to the Customer's use of SmartEO, including any output or other results produced by such use; and (ii) the Customer's breach of Clause 5.1.6 .
10.2 GEL agrees to indemnify, defend, and hold harmless the Customer from and against any and all losses, liabilities and expenses (including reasonable attorneys' fees) resulting from or arising out of any Claim that GEL is infringing the Intellectual Property Rights of a third party in developing and offering SmartEO with the exception of such Claims arising out of the Customer's breach of Clause 9.2.3 .
10.3 The Customer agrees to indemnify, defend, and hold harmless GEL from and against any and all losses, liabilities and expenses (including reasonable attorneys' fees) resulting from or arising out of any Claim that the Customer's use of SmartEO is infringing the Intellectual Property Rights of a third party.
11 LIMITATIONS OF LIABILITY
11.1 The Party in breach of its obligations under these Terms and Conditions shall be liable for direct losses in accordance with the general principles of applicable law.
11.2 Except as expressly provided for in these Terms and Conditions, neither Party shall in any event be liable towards the other for any indirect losses. Indirect losses include, but are not limited to, lost profits of any kind (with the exception of the fees payable by the Customer pursuant to Clause 7 ), lost savings or claims from third parties. GEL's total aggregate liability arising out of or relating to the provisioning of the SmartEO service is limited to an amount equivalent to the Subscription Fees paid to GEL by the Customer for the affected Subscription(s) during the last twelve (12) months prior to the date of the claim, excluding value added tax (VAT).
11.3 The limitations set out in Clause 11.2 shall not apply to losses incurred as a result of gross negligence or willful misconduct, or to Claims subject to the Parties' indemnification obligations under Clause 10 .
12.1 Duty of Confidentiality
12.1.1 The Parties, their employees and any third parties acting on their behalf are obliged to keep confidential any Confidential Information.
12.1.2 For the purposes of these Terms and Conditions, "Confidential Information" means any information (in whatever form communicated or maintained, whether orally, electronically or documentary, computer storage or otherwise) provided by a Party or anyone acting on its behalf, including employees, officers, directors and advisors, to the other Party in connection with the provisioning and receipt of the SmartEO service under these Terms and Conditions.
12.1.3 The confidentiality obligation does not apply to (i) information that is or becomes generally known or readily available to persons within the circles that normally deal with the kind of information in question; (ii) information that already was in the receiving Party's possession prior to the Effective Date; or (iii) information developed by a Party independently of any SmartEO Subscriptions.
12.1.4 A Party may disclose Confidential Information insofar as this is prescribed by law or regulations, pursuant to an order issued by the competent authority, or to the extent strictly necessary for a Party to exercise its rights or fulfill its obligations under these Terms and Conditions.
12.1.5 The Confidential Information of the other Party may only be used for the purpose for which the Confidential Information was received, and only to the extent necessary to achieve this purpose.
12.2 Duration of the confidentiality obligation
12.2.1 The confidentiality obligation shall apply for the duration of the Subscription Term, and for a period of three (3) years thereafter. However, the confidentiality obligation shall continue to apply to any Confidential Information not deleted or returned within such three (3) year period for as long as such Confidential Information is in the receiving Party's possession.
12.3.1 The Parties shall take the necessary precautions to prevent third parties from obtaining access to Confidential Information and shall not share Confidential Information with any third party, except as explicitly provided for in these Terms and Conditions or with the express written consent of the other Party.
13 TERM AND TERMINATION
13.1 These Terms and Conditions shall apply in full to each order placed in the SmartEO Portal as of the time the order is placed, and remain in force until the termination or expiry of each Subscription comprised by such order(the "Term").
13.2 In the event of the Customer's material breach of these Terms and Conditions, GEL may terminate the Subscription(s) purchased by the Customer with immediate effect.
13.3 Upon the termination or expiry of the SmartEO Subscriptions, for whatever reason, the license granted to the Customer pursuant to Clause 9.1.1 shall terminate automatically and the Customer shall cease any further use of SmartEO. Further, the Customer shall, at GEL's request and in accordance with GEL's instructions, uninstall, return or destroy any and all material owned by GEL in the Customer's and/or the End-Customer's possession.
13.4 Pilot Period
13.4.1 The Parties have agreed that the initial six (6) months after the Customer is first registered in the SmartEO Portal shall be considered a pilot period (the "Pilot Period") to allow the Customer the opportunity evaluate the commercial potential and usefulness of SmartEO within the Customer's business.
13.4.2 Notwithstanding Clause 7.2.1 , Subscriptions purchased during the Pilot Period may be terminated for convenience with effect as of the expiry of the Pilot Period by giving one (1) months' written notice thereof to GEL.
13.4.3 For the avoidance of doubt, the extraordinary termination rights granted under Clause 13.4.2 shall only apply for the Pilot Period and may not under any circumstances be exercised after the expiry thereof.
14.1 Force Majeure
14.1.1 If an extraordinary situation outside the control of the Parties should occur, which makes the performance of the obligations under these Terms and Conditions impossible, and which under applicable law must be classified as force majeure ("Force Majeure" situations), the other Party shall be notified of this as soon as possible. The obligations of the affected Party shall be suspended for as long as the Force Majeure situation prevails. The corresponding obligations of the other Party shall be suspended for the same period. The aforesaid does not apply in respect of any payment obligations pursuant to Clause 7 ). In Force Majeure situations, the other Party may only terminate the Subscriptions with the consent of the affected Party, or by giving fifteen (15) calendar days' notice if the Force Majeure situation prevails for more than ninety (90) calendar days.
14.2.1 These Terms and Conditions, including any other terms and conditions presented to you in the SmartEO Portal and as otherwise incorporated herein by reference, represent the entire understanding, and contain all the terms agreed between the Parties regarding the subject matter contemplated herein, and supersede and replace any prior agreement, understanding or arrangement between the Parties, whether oral or in writing, regarding the same subject matter. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to these Terms and Conditions except as expressly stated herein.
14.2.2 Survival of obligations. Any obligations or other provisions which, due to their nature, are intended to extend beyond the expiry or termination of these Terms and Conditions shall survive such termination or expiry.
14.2.3 Assignment. No Party shall, in full or in part, without the prior written consent of the other Party, assign or transfer all or any of its rights or obligations under these Terms and Conditions to a third party. Notwithstanding the aforesaid, GEL may, subject to reasonable notice, assign or transfer its rights or obligations set out herein, to an affiliate within its company group, including to any subsidiaries, sister companies or parent company.
14.2.4 No waiver. If a Party fails or otherwise neglects to enforce a provision of these Terms and Conditions, this shall not be deemed to affect the validity of any part of the Terms and Conditions, constitute a waiver of the Party's rights under the provision in question or prejudice that Party's right to take subsequent action pursuant thereto.
14.2.5 Notices. With the exception of day-to-day routine communications, all notices between the Parties shall only be considered validly given if made in writing and addressed to the other Party as set out in the SmartEO Portal.
14.2.6 Severability. If any provision of these Terms and Conditions is, or at any time becomes, unenforceable, illegal or invalid under applicable law, the other provisions of these Terms and Conditions shall remain unaffected thereby, and the Parties shall in good faith replace such severed provision with an alternative achieving the same commercial intention (to the extent possible).
15 GOVERNING LAW AND DISPUTE RESOLUTION
15.1 These Terms and Conditions shall be exclusively governed and construed in accordance with the laws of Norway without regard to principles of conflicts of law.
15.2 Any dispute, controversy or claim arising out of or in connection with these Terms and Conditions, which cannot be settled amicably through negotiations between the Parties, shall be settled by arbitration in Oslo, Norway, in accordance with the Norwegian Arbitration Act of 2004.
15.3 For clarity, Clause 15.2 shall be without prejudice to GEL's right to pursue and recover claims relating to the payment of Subscription Fees in accordance with the generally applicable rules and procedures under applicable law, and through the legal processes and venues prescribed therein.