ETAIN AS
General Terms and Conditions for Consultancy Services
Effective date: 1 June 2021
1 GENERAL
Etain AS is a Norwegian limited liability company with Reg. No. 920 998 704 (hereinafter “Etain”).
Etain provides certain consultancy services (collectively the “Consultancy Services”).
These terms and conditions for consultancy services (the “Consultancy Terms”) apply to all purchases of Consultancy Services from Etain.
By assigning, confirming or otherwise accepting that Etain performs Consultancy Services, a binding agreement between Etain and the physical or legal person for which the Consultancy Services are performed (the “Customer”) shall be deemed entered into. By accepting that Etain performs Consultancy Services the Customer accepts that delivery of the Consultancy Service is governed by these Consultancy Terms. Accordingly, these Terms shall be considered an integral part of the agreement governing Etain’s delivery of the Consultancy Services to the Customer.
Etain and the Customer are hereafter collectively referred to as the “Parties”.
Whenever date and time is relevant for interpreting these Consultancy Terms, UTC time shall be deemed the agreed time zone.
In the event of a conflict between these Consultancy Terms and any other documents in agreed form specifying the scope or nature of the Consultancy Service and the terms thereof, such other agreement documents shall take precedence over these Consultancy Terms unless otherwise is specified. If relevant, Etain’s standard data processing agreement shall also take precedence over these Consultancy Terms.
Etain also offers software made available as Software-as-a-Service, including adjustments, implementation and development of such software (collectively the “SaaS”). Delivery of SaaS are governed by Etain’s general terms of service (the “General Terms”). Unless it is explicitly agreed that these Consultancy Terms shall apply, the General Terms shall apply for all Etain deliveries.
2 ABOUT THE SERVICE
The scope, form and types of Consultancy Services to be provided shall be agreed upon specifically between Etain and the Customer in relation to each specific assignment. Normally, the scope of the Consultancy Services will be described in a separate order form (an “Order Form”) approved by both Parties.
Etain offers certain Consultancy Services (e.g. HighQ support packages etc.) on a retainer model on favorable terms, where a fixed number of pre-paid hours are included in specific periods. Unused hours from one period will not be added to the next period (no roll-over).
The Consultancy Services shall be performed with such quality as agreed in the Order Form, and with such amendments as may be agreed upon in connection with the execution of the Consultancy Services. In cases where a change imposes an increase in the scope of the Consultancy Service, Etain is entitled to payment on market terms for the increased scope unless otherwise agreed.
If no Order Form exists, Etain shall make commercially reasonable efforts to ensure that the Consultancy Services shall have such quality that can be expected of a standard equivalent good service in the market.
Etain shall further ensure delivery of Consultancy Services in accordance with the relevant terms of Etain’s Service Level Policy (the “Service Level Policy”).
Etain assumes no responsibility for achieving a specific result unless otherwise is specifically stated in the Order Form.
Making proper use of the results from certain Consultancy Services may require that the Customer has access to different types of hardware and/or software. Unless otherwise specified, the Customer shall be responsible for accessing such hardware and software directly from relevant vendors.
Etain’s Consultancy Services will in many cases result in technical solutions which requires maintenance and ongoing service and support. The Customer’s purchase of continued access to and maintenance of such solutions shall be governed by the General Terms unless otherwise is specified.
The Customer shall provide Etain with all relevant information and any requested documentation in a timely manner. Etain performs all Consultancy Services assuming that the information and documentation received, including documents received by the Customer for the processing of Etain, is correct and complete. If the Customer provides incorrect information or documentation, or incorrect versions of documents for processing, Etain is entitled to market payment for all extra work related to such information or documentation.
All Consultancy Services will be delivered by Etain as such, even when it is stated that a Consultancy Service is to be performed by one or more specific persons at Etain. If, in connection with the execution of the Consultancy Service, it is desirable or necessary to engage other parties than Etain, these shall be directly engaged by the Customer unless otherwise specified. Etain does not under any circumstances take responsibility for advice or deliveries from such consultants.
The results from a Consultancy Service may only be used in accordance with the agreed intended purpose, or if no such purpose is agreed, always in accordance with clause 9 (Intellectual Property Rights) of these Consultancy Services.
3 CONSIDERATION
3.1 CONSIDERATION AND EXPENSES
If no fixed price has been agreed in the Order Form, fees for Consultancy Services will be determined based on time spent and will be calculated according to Etain's hourly rates applicable from time to time. Please note that the current hourly rates will be updated in January of each year, and that updated hourly rates will apply without prior notice.
All reasonable and necessary expenses incurred in connection with performance of Consultancy Services will be charged separately in addition to the agreed consideration unless otherwise agreed.
Unless otherwise specified, all prices are stated excluding value added tax, customs duties etc.
Unless otherwise specified, all prices are stated in Norwegian kroner.
3.2 CONSULTANCY TERMS OF PAYMENT
Unless otherwise agreed, Etain will send invoices in arrears on a monthly basis with 14 days payment notice. Etain reserves the right to claim payments in advance even though this has not been specifically agreed.
When the Customer has made necessary arrangements, Etain may submit invoices, credit advice and reminders in accordance with Electronic Data Interchange (EDI) format as agreed with the Customer.
3.3 LATE PAYMENT INTEREST
If the Customer does not pay at the agreed time, Etain may claim interest on the amount which is past due for payment, in accordance with Act no. 100 of 17 December 1976 concerning interest on late payments, etc. (the Norwegian Late Payment 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, Etain may give the Customer written notice that the agreement will be terminated. Etain may terminate the agreement without further notice if settlement has not been made within thirty (30) calendar days after such notice.
Termination pursuant to this clause 3.4 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.
The effects of termination pursuant to this clause 3.4 shall be the same as set out in clause 7.
4 SERVICE DEFAULTS
4.1 NOTICE
The Customer shall, without undue delay, notify Etain if the Customer discovers or becomes aware of circumstances which may constitute a breach of Etain’s obligations towards the Customer. Specifically, the Customer shall complain as soon as the Customer becomes or should have become aware of circumstances which may imply that Etain has made errors which could lead to liability for Etain. In any event, and notwithstanding the above, Etain will accept no complaints on invoices which are presented to Etain later than 30 days after the invoice date.
4.2 THIRD-PARTY DELIVERABLES
If there is a defect or delay in a part of the Consultancy Service that is built on a third-party deliverable, and the defect cannot with reasonable efforts be corrected by Etain, Etain shall ensure that the deliverable is passed on to the relevant third-party provider. No other sanctions are available for such defects or delays.
4.3 DEFECTS CAUSED BY THE CUSTOMER
Etain shall have no responsibility or liability for circumstances caused by the Customer’s own use, third-party software, hardware malfunction, or other actions or inaction made by other parties than Etain. If Etain learns that a default or delay was caused by such reasons not being caused by Etain or Etain’s sub-suppliers, Etain may charge the Customer a reasonable fee for the work in investigating the default.
4.4 NO OTHER REMEDIES
No other remedies may be made against Etain than those explicitly mentioned in this clause 4.4.
5 LIMITATION OF LIABILITY
5.1 LIMITATION
If the Customer despite of clause 4 should be entitled to damages or other form of compensation from Etain, Etain shall in no case be liable for the Customer's loss of data and/or other form of information.
Furthermore, the Parties shall solely be liable for actually incurred direct financial loss due to negligence or intent on its own part. Neither Party are under any circumstances liable for indirect or consequential losses, including operating losses, loss of profit, loss of goodwill, etc.
Each Party’s total liability for the other Party’s potential financial loss shall in any case never exceed the total amount payable by the Customer to Etain for the Consultancy Service to which a loss is related during the past 12 months before the damage occurred.
5.2 EMPLOYEES, CONSULTANTS AND DIRECTORS
To the fullest extent permissible by law, no employee, hired consultant, director, officer or other physical person working for a Party shall be held liable for damages or other financial loss caused by delivery of the Consultancy Service.
To the extent such persons are liable regardless of this, the limitations of liability applicable for the Parties as set out herein shall apply accordingly for such persons.
5.3 UNLIMITED LIABILITY
The limitation of liability in clause 5.1 does not limit either Party’s liability for:
(i) fraud, fraudulent misrepresentation, willful misconduct, or conduct that demonstrates reckless disregard for the rights of others;
(ii) death or personal injury occurring as a direct consequence of negligence by the other Party; or
(iii) infringement of the other Party’s or a third party’s intellectual property rights.
Clause 5.1 shall not in any event limit the Customer’s obligation to pay fees for access to the SaaS or other products and services provided by Etain.
6 FORCE MAJEURE
If an extraordinary situation should arise which makes it unreasonably burdensome for a Party to fulfill its obligations herein, and which under Norwegian law must be classified as a force majeure event, 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 terminate 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 in a force majeure event. The Customer will pay the agreed price for the part of the Consultancy Services 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 soon as reasonably possible.
7 TERM AND TERMINATION
Unless otherwise is specified, the agreement between Etain and the Customer shall be valid until the Consultancy Service in question has been completed and delivered.
If the term of the agreement has not been specified, and Etain’s Consultancy Service is not limited in time or to a specific project, each Party may terminate the agreement in whole or in part (e.g. by terminating parts of the Consultancy Service only) at any time without cause by written notice to the other Party. Termination notifications to Etain may be sent to support@etain.no.
Termination will have effect after the end of the month coming after the termination was notified (i.e. if a termination notice is received in March, the termination will have effect as from 1 May).
Termination shall not affect the Customer’s obligation to pay incurred and ongoing fees for the Consultancy Service during the termination period.
Clauses 5 (Limitation of liability), 6 (Force majeure), 7 (Term and termination), 8 (Personal information), 9 (Intellectual property rights), 10 (Confidentiality), 15 (Marketing), and 15 (Dispute resolution) shall survive the termination of these Consultancy Terms, regardless of cause.
8 PERSONAL INFORMATION
Etain will process all personal data in accordance with the GDPR as implemented in the Norwegien Personal Data Act (Nw: Personopplysningsloven). The Customer has the sole responsibility for ensuring that the personal data transferred to Etain is obtained and maintained by the Customer in accordance with the applicable privacy law regulations.
If a Consultancy Service requires Etain to act as a data processor in accordance with the relevant privacy regulations, Etain’s standard data processor agreement available at www.etain.no shall apply.
Etain will also receive contact information from relevant persons from the Customer to send newsletters, information about courses, lectures and events, etc. By providing such information, the Customer represents that Etain may use the personal information for these purposes also after an assignment has been completed.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 ETAIN’S RETENTION OF INTELLECTUAL PROPERTY RIGHTS
Etain retains and shall be entitled to full and unrestricted ownership of all copyrights and other intellectual property rights to the result of, and from, the Consultancy Services. This applies even if the Customer has been actively involved in the development of such results. Etain’s retention of intellectual property rights includes all rights to material (documents, process descriptions, design descriptions, drawings, figures, solution descriptions, concrete solutions, images, sound recordings, film recordings, data files, computer programs, software code and other copyrighted or otherwise intellectual property protected material) produced as part of the Consultancy Service. The same applies to ideas, concepts, models and the like that may be included in the Consultancy Service.
Regardless of the above, Etain shall not in any way obtain any rights to the Customer's trademark or other material that evidently has been prepared solely by the Customer independently of Etain.
9.2 CUSTOMER’S USER LICENSE
The Customer is granted a free, worldwide, perpetual and irrevocable right to use all HighQ configurations, process descriptions, training materials, internal documentation, written advice and configurations on the Customer’s own IT infrastructure produced by Etain as a part of the Consultancy Services.
9.3 LIMITATIONS IN THE CUSTOMER’S USER LICENSE
Unless otherwise is expressly stated, the Customer is granted no user rights to other results from the Consultancy Service than those explicitly mentioned in clause 9.2.
Etain’s delivery of the Consultancy Service does not grant the Customer any rights to materials developed by Etain independently of the Consultancy Service (including, without limitation, documents, process descriptions, design descriptions, drawings, figures, solution descriptions, concrete solutions, images, sound recordings, film recordings, data files, computer programs, software code, specific solutions templates built on HighQ, or other copyrighted or otherwise intellectual property protected material), or any adjustments to or further developments of such materials made as part of or during the delivery of the Consultancy Service.
9.4 LICENSE FEE
Etain may require a license fee, in addition to the compensation paid for the Consultancy Services, to be paid by the Customer for continuing access to such results and materials provided by Etain which is not subject to the user rights granted to the Customer pursuant to clause 9.2.
Etain’s continued delivery of such materials and results shall be deemed a SaaS to be governed by the General Terms.
10 CONFIDENTIALITY
Etain shall keep all information received about the Customer or the Customer's relations strictly confidential, and Etain shall ensure that adequate steps are taken to protect the Customer’s information as described in the Service Level Policy.
Etain shall ensure that all employees and consultants who are involved with performing Consultancy Services for Etain are obliged by similar confidentiality obligations. Etain shall further ensure that Etain's subcontractors are subject to confidentiality obligations that at least correspond to the obligations applicable for Etain as set out herein.
Etain may only share confidential information with consultants and employees of Etain to the extent necessary to fulfill the Consultancy Services. This also applies to employees of Etain's partners, as well as to subcontractors that Etain acts on behalf of, or cooperates with in relation to delivery of the Consultancy Services.
Etain may use subcontractors to deliver the Consultancy Services (such as software from the supplier HighQ), where the subcontractor will be able to access certain confidential information, including any personal information. By accepting these Consultancy Terms, the Customer also accepts that Etain makes use of the subcontractors that will be applicable to the specific Consultancy Service, even if such subcontractors are not specifically specified in these Consultancy Terms or other contract documents.
The Customer can always request an overview over the subcontractors used by Etain, and the Customer can at any time demand that certain subcontractors shall no longer be used for a specific assignment for the Customer. If removing a subcontractor from an assignment has consequences for Etain's ability to perform the Consultancy Services as agreed, the scope of the Consultancy Services shall be changed accordingly. Etain shall have no liability for such changes in scope, and the Customer shall pay market price to compensate increases in scope due to such changes.
In cases where external advisors are engaged by or via Etain, the Customer is deemed to have accepted that Etain may transfer necessary information, including any personal information, to the relevant adviser or subcontractor for the fulfillment of the Consultancy Services. This also applies if such advisors are established outside the EU / EEA area and applies regardless of whether the external consultant is engaged by Etain, by the Customer itself or anyone acting on behalf of the Customer.
11 MARKETING
Unless otherwise agreed, Etain may use the Customer's name and logo, without mentioning the specific content of the Consultancy Services performed for the Customer, as reference on Etain’s website and in connection with sales and marketing, including when submitting tenders. Before the Customer's name may be used in news articles or similar on other media than Etain’s website, Etain will ask for the Customer's consent.
12 USE OF E-MAIL
Etain may use e-mail to communicate in relation to delivery of the Consultancy Services, also for the transmission of confidential information. Etain uses encryption in accordance with the Service Level Policy.
13 COMPLIANCE
Etain and the Customer shall at all times act in accordance with applicable laws, including export controls and economic sanctions that apply to any Party in connection with the Agreement.
14 AMENDMENTS
Etain may amend these Consultancy Terms with three (3) months’ notice to the Customer. By continuing to use the Consultancy Services after the three months period the Customer shall be deemed to accept the amended Consultancy Terms as applicable as form the end of the three months’ notice period.
