Effective as of 13.10.2021
1. ABOUT THESE GENERAL TERMS
These general terms form an integral part of, and an appendix to, each agreement between a company in the DEFA Group (“DEFA”) and its customer (the “Customer”), or DEFA’s specific terms for a service which the Customer has accepted, setting out the service(s) that DEFA shall provide to the Customer (the “Service Agreement”). References herein to the Service Agreement also mean its appendices, including these general terms.
If any provision of these general terms is contrary to the Service Agreement (not including the general terms), the provisions of the Service Agreement shall prevail.
These general terms apply to the extent that they are not contrary to mandatory law, in particular mandatory provisions of consumer protection law.
2. THE SERVICE
The service(s) to be provided by DEFA to the Customer shall be set out in the Service Agreement (the “Service”). Specific requirements for the Service, such as the service level, may also be defined in the Service Agreement.
DEFA has the right to make changes to the Service as part of its continuous development of the Service. This may include new or changed functionality, changes to the user interface and the specification for the Service set out in the Service Agreement. DEFA may also elect to release new functionality as separate services that will be in addition to the Service, or only applicable to specific service levels or groups of users, and which may be subject to separate agreements or additional fees.
The Customer shall be responsible for providing the necessary information to DEFA to provide the Service. The information required will vary with each Service, but may include personal data.
DEFA has the right to require satisfactory proof of identity or authorization, and may at its own discretion perform a creditworthiness check.
4 NETWORK USE
If the Service requires an internet connection or other network connectivity, and it is not explicitly stated in the Service Agreement that DEFA shall provide such connectivity, the Customer is solely responsible for obtaining connectivity to access and use the Service.
Services that include a mobile network subscription are based on DEFA reselling access to the network operator’s mobile network to the Customer. The Customer’s acceptance and fulfillment of any requirements set by such operator is a requirement for the Customer’s use of the Service. The mobile networks used by DEFA at any given time for providing the Service are specified on the DEFA website at www.defa.com.
The Customer must personally ensure that there is adequate coverage for mobile signals at the locations where the Service is used, and bears the risk of inadequate coverage. The Customer shall check Service availability and functionality on a regular basis. Use of the Service abroad presumes that the network operator has a roaming agreement with a foreign network operator.
DEFA shall provide support to the Customer in accordance with the service levels specified for the applicable Service.
Unless as otherwise stated in the Service Agreement: (a) the Customer may use DEFA’s customer service center for the purposes of requesting and, where applicable, receiving support for its own use of the Service; and (b) DEFA’s obligations in respect of support to the Customer shall be limited to providing support in accordance with the standards of skill and care reasonably expected from a leading service provider in DEFA’s industry, on an «as available» basis during DEFA’s business hours.
The Service may be predicated on the functionality of associated equipment. To the extent necessary for provision of the Service or to prevent misuse of the Service, DEFA has the right to alter settings or upgrade software etc. in associated equipment by remote access or the like without giving notice to the Customer. The Customer accepts that this may entail changes to the functionality of the associated equipment.
6 THIRD PARTY SERVICES
If the Service includes that DEFA shall provide an API that enables interaction between the Service and third party services, DEFA’s only responsibility in this regard shall be to maintain the API. Unless explicitly stated to the contrary in the Service Agreement, DEFA shall have no obligation to provide or maintain support or compatibility with third party services, but if DEFA does provide any such support or compatibility, DEFA may discontinue it at any time.
DEFA shall deliver the Service on the delivery date or during the period, whichever is applicable, stated in the Service Agreement. If such date or period is not stated, DEFA shall deliver the Service without undue delay and throughout the term of the Service Agreement.
8 PRICES AND PAYMENT
All prices, fees and other amounts are exclusive of VAT, unless otherwise stated.
DEFA shall issue invoices to the Customer for payment for the Service. DEFA may require a reasonable invoice fee as listed in the price schedule for the relevant Service. DEFA has the right to issue consolidated invoices for different Services provided to the same Customer.
Fixed fees are invoiced in advance, ordinarily for one year at a time, except as may be set out in the individual Service Agreement. Invoices shall be due 30 days after the invoice date.
Interest for late payment shall accrue according to the applicable statutory interest rate for late payments. If no statutory interest rate applies, an interest rate of 10% p.a. compounded at the end of each calendar month shall apply.
The Customer shall notify DEFA immediately upon discovery of any defects in the Service. If such notice is not given without undue delay from when the defect was or should have been discovered, the Customer forfeits its rights relating to the defect, unless such forfeiture is contrary to applicable mandatory law.
Upon being made aware of a defect in the Service, DEFA has a right and obligation to without undue delay take reasonable steps to rectify the deficiency. Defects that do not significantly affect the use of the Service may be corrected by including a remedy in a planned upgrade or fix.
Except as explicitly stated in the Service Agreement, the Service is provided on an «as is» and «as available» basis, provided that DEFA shall use reasonable endeavors to maintain the functionality and availability of the Service. Any error in or unavailability of the Service caused by circumstances such as the following shall not be considered a defect or other breach of the Service Agreement, or affect the calculation of service levels defined therein:
(a) technical or geographical factors, the network connection, signal blocking, the Customer’s computer systems or networks or any equipment not provided by DEFA, GPS
coverage and other factors beyond DEFA’s control;
(b) acts or omissions of the Customer or any representative of the Customer, including any failure by the Customer to perform or observe any of its obligations under the Service Agreement;
(c) use of the Service contrary the Service Agreement or DEFA’s instructions;
(d) scheduled maintenance in accordance with the Service Agreement;
(e) unscheduled maintenance that in the reasonable discretion of DEFA is necessary to avoid or mitigate risks, and which DEFA could not reasonably have taken into account for scheduled maintenance; or
(f) incompatibility with any system, network, hardware or software that is not explicitly stated as compatible with the Service in the Service Agreement.
10 TERM AND TERMINATION
A party may terminate the Service Agreement with one month’s written notice of termination, effective at the end of the applicable calendar month. DEFA will refund a proportional amount of any prepayments if the Customer terminates this agreement under this clause during a prepaid term.
A party may terminate the Service Agreement with immediate effect upon written notice, if the other party has committed a material breach of the Service Agreement and such breach is not cured within 30 days of such other party’s receipt of written notice of such breach.
Upon termination of the Service Agreement, the parties’ rights and obligations pursuant to the Service Agreement shall cease, except for such obligations that by their nature shall survive the termination of the Service Agreement, and any fees accrued prior to termination shall immediately fall due.
If the Customer is a “consumer” pursuant to applicable consumer protection laws, the Customer may cancel the agreement within the 14-day cooling-off period commencing from when DEFA fulfilled its duty to provide information pursuant to the Consumer Rights Directive 2011/83/EC as transposed into national law.
11 INTELLECTUAL PROPERTY RIGHTS
Except as may be explicitly stated in the Service Agreement, nothing herein shall entail a transfer of any intellectual property rights from one party to the other.
DEFA shall be the exclusive owner of any intellectual property rights arising out of the Services or any developments thereto.
Subject to the payment of the agreed upon fees for the Service, DEFA hereby grants to the Customer a non-exclusive and non-sublicensable right to use the Service in accordance with the Service Agreement.
Unless otherwise agreed with the Customer, all data and information uploaded to or stored in the Service or in DEFA’s systems by or on behalf of the Customer, or which is generated as a result of the use of the Service by the Customer, but excluding anonymized analytics data relating to the use of the Service and server log files (the “Customer Data”), shall belong to the Customer. DEFA may use the Customer Data to provide the Service to the Customer and to improve the Service.
The Customer warrants to DEFA that the Customer Data, when used by DEFA in accordance with the Service Agreement, will not infringe the intellectual property rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction.
12 USE AND MISUSE OF THE SERVICE
Unless explicitly stated in the Service Agreement, the Service is personal and may not be shared, sublet or otherwise transferred to a third party. This does not apply to members of the Customer’s household or occasional and non-commercial use by other persons.
DEFA has the right to set requirements for equipment to be used with the Service.
The Customer shall use reasonable endeavors, and employ reasonable security measures, to ensure that no unauthorized person will gain access to accounts of the Customer, including to keep user names, passwords and other access credentials associated with the Service secret and securely stored. The Customer is responsible for any use or misuse of the Service through its accounts where such use is enabled by the use of the Customer’s access credentials or is otherwise the result of the Customer’s failure to secure its accounts. If the Customer becomes aware that the access credentials associated with the Service have been compromised, the Customer shall take immediate action to prevent misuse, including changing passwords (if possible) or contacting DEFA to have the Service blocked.
The Customer has no right to access the software code (including object code, intermediate code and source code) of the Service or otherwise relating to DEFA’s provision of the Service, either during or after the term of the Service Agreement.
13 TEMPORARY SUSPENSION
DEFA has the right to temporarily suspend or limit the functionality of the Service or access to the Service, at its own discretion and without liability to the Customer, if:
(g) the Customer fails to pay any invoice by the due date and has failed to lodge a justified and fair complaint against that invoice within the same time period;
(h) the Customer has provided defective or inaccurate customer details, and this has bearing on the account;
(i) the Customer uses equipment with the Service which is not compatible with the Service Agreement;
(j) DEFA has due grounds to suspect that the Customer is misusing the Service, contrary to the Service Agreement, in breach of applicable law or in violation of third-party rights;
(k) DEFA has due grounds to suspect that the Service is the object of other misuse, and suspension is found to be a fair measure for protecting the Customer’s, DEFA’s or a third party’s justified interests; or
(l) If necessary to protect the security and/or functioning of the network or the Service, or the protection of third parties.
Before effecting suspension or limitation of the Service, DEFA shall as far as possible notify the Customer in writing and invite the Customer to comment on the matter. Failure to rectify circumstances such as those listed as items (a)–(b) within a reasonable time limit set by DEFA shall be construed as a material breach. The suspension or limitation shall cease when the basis for such suspension or limitation is rectified or no longer applies.
The Customer may demand temporary suspension or limitation of the Service by notifying DEFA. DEFA shall not be liable for suspension or limitation as a result of any imposter posing as the Customer, unless DEFA acted negligently. Suspension or limitation shall be implemented as soon as possible unless the Customer has specified a later time, and will last until the Customer submits a request for the Service to resume.
Fixed current fees will accrue during suspension or limitation if the Service has not been cancelled. DEFA may charge a suspension or limitation fee as per its current price list.
14 PERSONAL DATA
The Customer shall be responsible for assessing and deciding whether the Customer is the data controller and DEFA a data processor for any Customer Data, in which case the Customer shall notify DEFA thereof. If DEFA agrees that the Customer is the data controller, and DEFA the data processor, the data processing agreement appended to the Service Agreement shall govern DEFA’s processing of personal data on behalf of the Customer.
15 LIMITATION OF LIABILITY
DEFA’s liability to the Customer for defects in the Service shall be limited to a proportional price reduction. DEFA’s total liability to the Customer under the Service Agreement shall not exceed the total amount paid and payable by the Customer to DEFA for the Service during the six months preceding the commencement of the event that caused liability.
DEFA shall not be liable for:
(a) indirect losses, including any loss of profit, unless such loss is the result of gross negligence or intentional acts by DEFA;
(b) losses attributable to circumstances beyond DEFA’s control and which DEFA could not reasonably have foreseen or overcome the consequences of;
(c) losses that could have been prevented by reasonable actions on the part of the Customer;
(d) any error in or unavailability of the Service caused by circumstances that are not regarded as a defect pursuant to section 9.3;
(e) the content of communication via the Service or through equipment used with the Service, unless explicitly stated in the Service Agreement; and
(f) any loss or corruption of any data, database or software, provided that DEFA has fully complied with its obligations to backup Customer Data.
The Customer is liable for any use of the Service unless the Customer can show that the use is unauthorized and made possible by DEFA’s negligence or a deficiency in the Service. If the Customer is a “consumer” pursuant to mandatory consumer protection laws, the Customer’s liability under this clause is limited as follows: NOK 1,000 for ordinary negligence, or up to NOK 8,000 in the case of gross negligence. However, in the case of willful or negligent failure to notify within reasonable time following the customer becoming aware of any unauthorized use, or an event that is eligible to cause unauthorized use (including that access credentials to the Service become available to unauthorized persons), the Customer’s liability shall in any case be unlimited. DEFA is liable for use or misuse of the Service occurring after DEFA has acknowledged receipt of such notice.
DEFA’s liability for the loss or corruption of Customer Data shall be limited to using reasonable endeavors to restore the Customer Data from a backup copy, and DEFA shall have in place backup routines for the Customer Data in line with good industry practice. The Customer shall reimburse DEFA of its costs related to the restoration of Customer Data if the loss or corruption was caused by the Customer or other circumstances for which DEFA is not liable. Changes to the Customer Data that were made in the interim period from the backup was made may be lost as part of the restoration process, and DEFA shall not be responsible for such loss.
The Customer may request changes to the Service insofar as DEFA offers different options for the Service. DEFA may on the same basis as for setting up of the Service approve or reject the Customer’s change requests.
DEFA has a right to make changes to the Service Agreement, including adjusting prices, upon three months’ prior written notice to the Customer. If the Customer does not wish to accept such changes, the Customer may by written notice to DEFA terminate the Service Agreement with effect from the date on which the new service fees apply, or continue the Service Agreement on the existing terms until any agreed fixed term expires.
Regardless of the foregoing, DEFA has a right to make price changes with immediate effect if they are due to an increase in public charges, taxes or other circumstances affecting DEFA’s end user fees and which are beyond DEFA’s control.
DEFA has the right to assign its rights and obligations under the Service Agreement to other companies in the DEFA Group or in connection with the transfer of associated undertakings. Other assignment by either party shall require the prior written consent of the other party.
18 COMMUNICATION AND CONTACT DETAILS
Communication from the Customer to DEFA concerning the Service shall be via the DEFA customer service center. Contact details are available at www.defa.com.
Other communication may be effected by communicating with the contacts named by the parties for purposes of the Service, including by means of electronic communication.
The Customer shall as soon as possible notify DEFA of any changes to the contact details it has provided and any other changes significant for its account.
All communication with DEFA concerning the Service may be stored by means of either audio recordings or in electronic records etc. without prior notice.
19 CHOICE OF LAW AND VENUE
The Service Agreement and all claims arising out of it and any Service shall be governed exclusively by the laws of the country in which DEFA is incorporated, disregarding its principles of conflict of laws, and the ordinary courts of such country shall have exclusive jurisdiction over any disputes arising out of the Service Agreement.
If the Customer is a consumer the choice of law and venue may follow from mandatory provisions of consumer protection law, in which case such provisions shall apply and prevail.