Product And Subscription Terms ("The Agreement")
1 Our Relationship With You
This Agreement governs the relationship between the Nofence entity specified in the Order ("Nofence", "us", "we" or "our") and our customers ("Subscriber", "you" or "your"), each of which is a "Party" and jointly referred to as the "Parties". Please carefully read all the terms herein. By submitting an Order incorporating this Agreement, you are confirming that you have read, understood, and accepted this Agreement with the relevant Nofence entity and that you agree to be bound by its terms. If you do not agree with the terms of this Agreement, you must immediately
discontinue your use of the Solution (as defined below).
- "Authorized Users" means all users authorized to use the Solution, e.g., employees or contractors of Subscriber, solely for Subscriber's internal purposes, in accordance with this Agreement.
- "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 this Agreement.
- "DAP-terms" means Delivered At Place as defined under the Incoterms ® 2020.
- "Effective Date" means the date as set out in the Order and as defined in Clause 9.1.
- "Firmware" means Nofence's proprietary computer software programs installed on or embedded in the Hardware provided hereunder, in machine-readable form only.
- "Hardware" means Nofence's solar-powered GPS-collar and associated hardware components, as set forth in the Order, purchased by Subscriber hereunder or that is owned by Subscriber and, in each case, is configured by Nofence for use with the Software in connection with a Subscription.
- "Intellectual Property" 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.
- "Order" means an order entered into between the Subscriber and Nofence through any order mechanisms accepted by Nofence, as further described in Clause 3.1.
- "Software" means all software products and solutions owned, developed and provided by Nofence to the Subscriber as a Service such as the Nofence-App, as well as any modification thereof whether developed by Nofence or a third party acting on Nofence's behalf.
- "Subscription" means a subscription license purchased by Subscriber to access and use the Solution and receive Support during the applicable Subscription Term, as further specified in Clause 6.1 and in the applicable Order.
- "Subscription Term" means the subscription term for Subscriber's access and use of the license as described in Clause 6.1 and as outlined in the applicable Order.
- "Support" has the meaning given to such a term in Clause 7.
- "Nofence-App" means Nofence's proprietary iOS and Android software mobile applications, in machine-readable form only, that can be used to control and operate the Hardware in order to make a virtual fence system for animals, and that Nofence provides to the Subscriber or its Authorized Users under this Agreement.
- "Solution" means the Hardware, the Firmware and/or the Software specified in the applicable Order that Nofence provides to Subscriber under this Agreement.
- "Usage Parameters" means the various parameters relevant for the Subscription, as specified in the applicable Order, i.e., the number of Authorized Users, the territory for which the Subscriber and its Authorized Users may use the Solution and any other parameters specified in the Order, or in writing by Nofence regarding the scope of use of the Solution by Subscriber or its Authorized Users.
- "Solution Data" means all types of data related to the Solution, generated by sensors, such as data generated through the Subscriber's use of the Solution, data collected from the animals' movements and behavior, including, e.g., sensor data, location data, diagnostics, accelerometer data and GNSS data.
- "Animals" means sheep, goat and cattle. The Nofence-solution is tailored to these three specific animal species. Other species are not covered by this agreement.
3 Ordering Software and Hardware
3.1 Ordering process
The Subscriber may order Subscriptions and/or Hardware (as applicable) by placing an Order through our online ordering system, or by issuing a written request to email@example.com, or any other ordering mechanisms as accepted by Nofence. Nofence may in its sole discretion decide whether or not to accept the Subscriber's request.
3.2 The Agreement and the Order
Each Order will be governed by the terms of this Agreement. Unless otherwise expressly stated in the Order, this Agreement shall in case of conflicts or inconsistencies prevail over the terms of any Order or other document.
4 Hardware and Shipment
Nofence reserves the right to cancel any Orders placed by Subscriber and accepted by Nofence, or to refuse or delay shipment thereof, if Subscriber (a) does not pass Nofence's credit check or fails to make any payment as provided in this Agreement or under the terms of payment outlined in any invoice or otherwise agreed to by Nofence and Subscriber, or (b) otherwise fails to comply with the terms of this Agreement. No such cancellation, refusal or delay will be deemed a termination (unless Nofence so advises Subscriber) or breach of this Agreement by Nofence. Subscriber may not cancel shipment of the Hardware ordered pursuant to an executed Order by both Parties. Subscriber agrees that delivery of Hardware shall be made from Nofence's designated shipping facility as indicated in each Order. Unless otherwise determined by Nofence, Hardware shipped from a warehouse in Subscriber's jurisdiction or from a warehouse in Norway, shall follow the DAP-terms. Estimated delivery dates and Hardware availability will be outlined in the Order and Nofence shall make reasonable efforts to deliver in accordance with these dates. However, Nofence will not be liable for failure to deliver as estimated. The Hardware may be delivered by Nofence in advance of the quoted delivery date by giving reasonable notice to the Subscriber. Nofence may deliver the Hardware in separate installments. Subscriber will, at Subscriber's sole cost, furnish or procure all utilities necessary for the operation of the Solution. Nofence will not be liable for any loss, injury or damage resulting from any interruption or failure of utilities due to any cause whatsoever.
5 Installations and Mobile Devices
The Subscriber is responsible for utilizing the Hardware in accordance with Nofence's user manual which will become available in the Nofence-App following the purchase. The Subscriber acknowledges and agrees that in order to use the Software, Authorized Users must have compatible mobile devices. Subscriber and its Authorized Users are solely responsible for determining whether or not a mobile device is or is not compatible with the Software and Nofence makes no representation or warranties whatsoever regarding the Software and compatibility with any mobile device.
6 Access and Use of the Solution
Provided that the Subscriber performs in accordance with the terms set forth herein, including the Order, Nofence hereby grants the Subscriber a limited, non-exclusive, non-transferable license to (i) permit Authorized Users to install and use the Nofence-App in accordance with any Usage Parameters and solely for the purpose of accessing, monitoring and controlling the Hardware, and (ii) execute and use the Firmware solely to the extent included or embedded (as and if applicable) in the Hardware in connection with Subscriber's use of the Hardware.
The Subscriber may not, directly or indirectly permit or authorize third parties (including without limitation, any Authorized Users), to; (a) use the Solution (or any parts thereof) for any other purpose than set out in Clause 6.1; (b) use the Solution beyond the scope of the license and/or capacity purchased; (c) alter, modify, translate, copy, reproduce or create or prepare derivative works of the Solution (or any parts thereof), or make any attempt to do so; (d) decompile, disassemble, translate or otherwise reverse engineer the Solution (or any parts thereof); (e) provide others than the Authorized Users with access or use of the Solution (or any parts thereof, except for the Hardware), unless upon Nofence's written consent; (f) transfer, resell, sublicense or assign the right to use the Solution (or any parts thereof, except for the Hardware) to another individual or entity without Nofence's written consent; (g) attempt to gain unauthorized access to any portion or feature of the Software, or any other systems or networks connected to the Software, by hacking, password "mining" or any other illegitimate means; (h) "frame" or "mirror" the Software or any portion of it on any other server or device than prescribed by Nofence without the prior written consent of Nofence, (i) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material; (j) use the Software in a manner that violates any local, national, foreign or international law, or to interfere with or disrupt the Software; and (k) violate any applicable laws or regulations, or the rights of any third party in connection with the use or access of the Solution.
6.3 Solution Data and Personal Data
The Subscriber accepts that Nofence retains the right of sole and exclusive ownership of all the Solution Data, including any Intellectual Property Rights vested therein. The Subscriber agrees that Nofence may collect, aggregate, store, process, transmit, analyze and use Solution Data in order to (i) provide the Solution and support relating to the Subscriber's use of the Solution; (ii) improve Nofence's products and services, i.e., the Hardware and the Software and (iii) create new products and services based on processed Solution Data.
Subject to the Subscriber's payment of applicable fees, Nofence will use commercially reasonable efforts to provide the Subscriber with remote customer support services relating to the Subscriber's use of the Solution during the applicable Subscription Term and during normal working hours. The Parties may separately agree to any additional bespoke support services.
8 Proprietary Rights
All rights, titles and interests, including all Intellectual Property Rights in and to (i) the Software and Firmware; (ii) new functionalities of the Software and Firmware; (iii) aggregate data concerning the use of the Solution; and (iv) new and/or improved products, services and other materials resulting from Nofence's processing of the Solution Data, is and shall remain the sole property of Nofence.
Notwithstanding the above, the Subscriber shall retain title to the Hardware purchased hereunder, subject to Nofence's Intellectual Property Rights in any Firmware. In addition, the Subscriber agrees that Nofence is free to use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Subscriber pertaining to Nofence's Intellectual Property Rights for the purpose of refining and/or further developing said Intellectual Property Rights, free of any encumbrances and without affecting Nofence's rights therein or ownership thereof.
9 Term and Termination
This Agreement shall commence on the date specified in the Order (the "Effective Date"), and will continue for as long as any Software, Support or other services are being provided by Nofence to the Subscriber under this Agreement. The Subscription Term of the license granted to the Subscriber pursuant to Clause 6.1, shall be set forth in the Order, and shall automatically renew for successive terms equal in duration to the initial license term unless either Party notifies the other Party in writing not less than three (3) months before the expiration of the then-current Subscription Term, that such Party does not wish to renew the Subscription.
In the event of a material breach of this Agreement by either Party, the non-breaching Party may, after having provided a 30-days notice to the Party in breach to rectify the breach, terminate the Agreement for cause with immediate effect. To the extent permitted under applicable law, Nofence may terminate the Agreement with immediate effect if the Subscriber (i) does not pass Nofence's credit check; (ii) is claimed to be dissolved by any court or competent administrative body; (iii) becomes subject to bankruptcy, debt rescheduling proceedings, composition with creditors, or any other form of creditor intervention; or (iv) becomes subject to an event analogous to (ii) or (iii), and is unable to document that the conditions for such termination are not fulfilled within the ten (10) business days immediately following receipt of the claim of termination.
This Agreement may also be terminated by Nofence, at Nofence's discretion, should Nofence consider that the Solution is used in a manner contrary to the animals' best interest and your negligent use of our Solution is causing harm to the animal.
9.3 Effect of Termination
Upon the expiration or termination of this Agreement for whatever reason, the license granted to the Subscriber pursuant to Clause 6.1 shall terminate automatically and the Subscriber shall cease any further use of the Solution or any parts thereof. If the Subscriber terminates the Agreement or any parts thereof, for any other reason than in accordance with Clause 9.2, the Subscription Fees for the entire term of the Agreement or the remainder of the Subscription (as applicable) shall be immediately due and payable. The Parties' obligations under Clause 8 and Clause 11 of this Agreement shall survive any termination and/or expiration of this Agreement.
In consideration of the Hardware, the Subscriber shall pay to Nofence the Hardware Fees stipulated in the Order.
10.2 Subscription Fees
In consideration of the Software, the Subscriber shall pay to Nofence the Subscription Fees as set forth in each Order. The Subscription Fees shall be paid in advance as specified in the Order. Unless otherwise set forth in the Order, the Subscription Fees will remain fixed during the Subscription Term unless the Subscriber at any time during a Subscription Term (i) exceeds the applicable Usage Parameters (including without limitation, the permitted number of Authorized Users, or territories for use of the Solution) or other applicable limits or (ii) the Subscriber increases the Usage Parameters or subscribes to additional features or products.
10.3 Payment Terms
Unless otherwise set forth in the applicable Order, all invoices issued by Nofence to the Subscriber shall fall due for payment fourteen (14) days from the date set out in the invoice. If the Subscriber does not pay within the agreed time, Nofence 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).
10.4 Price Adjustments
The Hardware Fees and the Subscription Fees (together referred to as "Fees") may be adjusted at the discretion of Nofence 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. The Fees may also be adjusted to the extent that rules or administrative decisions pertaining to public taxes are amended in a way that affects Nofence's costs of providing the Solution or any parts thereof. In such cases, Nofence will provide the Subscriber with a thirty (30) day notice, documenting the reason for the increase in the Fees. The price changes will take effect after thirty (30) days from the date which such notice was issued by Nofence. Furthermore, Nofence may at its discretion, change the Fees or structure thereof from time to time for reasons other than those set out above.
10.5 Other costs
Other than as set out above in this Clause 10 and the Order, each Party shall carry its own costs under this Agreement.
11. 1 The Confidentiality Obligation
The Parties, the Authorized Users and any third parties acting on their behalf are obliged to keep confidential any Confidential Information. 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 this Agreement. A Party may disclose Confidential Information insofar as this is prescribed by law or regulations, pursuant to an order issued by a competent authority, including an agreement with a recognized stock exchange, or to the extent strictly necessary for a Party to exercise its rights or fulfill its obligations under this Agreement. 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. It is understood and agreed that the receiving Party shall on a strict need-to-know-basis and under the same obligations as set out hereby have the right to disclose Confidential Information to any of its parent company, subsidiaries or companies under the same control as the receiving Party.
11.2 Duration of the Confidentiality Obligation
The confidentiality obligation shall apply during the term of this Agreement, and continue following the termination of the Agreement. The confidentiality obligation shall continue to apply to any Confidential Information not deleted or returned for as long as such Confidential Information is in the receiving Party's possession.
12 Limited Warranty
Any guarantee given to our Subscribers in relation to Hardware is exclusively regulated by our Nofence Hardware Warranty Policy as applicable at the time of the purchase, provided here: Nofence Hardware Warranty Policy. Any access granted to the Software, Firmware, Support or any other services, is provided on an "as is" and "as available" basis only. Nofence makes no representations or warranties regarding the usefulness or effectiveness of the Software. Nor does Nofence make any representations or warranties that the Software will be uninterrupted, error-free, or that it is completely secure, including that animals always will stay within the pre-defined grazing area when using the Hardware.
The Subscriber agrees to indemnify and hold Nofence harmless against any and all losses, liabilities and expenses (including reasonable attorneys' fees) suffered or incurred by the Subscriber by reason of (i) any third party claim, suit or proceeding ("Claim") arising out of or relating to the Subscriber's use of the Solution; (ii) the Subscriber's breach of this Agreement or Order(s); (iii) Claims related to animal welfare; and (iv) Claims resulting from incidents where animals have moved outside of the grazing area.
Nofence agrees to indemnify, defend and hold harmless the Subscriber from and against any and all losses, liabilities and expenses (including reasonable attorneys' fees) resulting from or arising out of, any Claim that Nofence is infringing the Intellectual Property Rights of a third party in developing and offering the Solution.
14 Limitations of Liability
The Party in breach of its obligations under this Agreement shall be liable for direct losses in accordance with the general principles of applicable law. Except as provided for in this Agreement, 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, lost savings or claims from third parties. Except for the Subscriber's liability for payments hereunder, the parties' total aggregate liability arising out of or relating to this Agreement is limited to an amount equivalent to the Subscription Fees paid to Nofence by the Subscriber during the last twelve (12) months prior to the date of the claim, excluding value-added tax (VAT). If the Solution has been provided for less than 12 months, the limitation shall be calculated by multiplying the monthly cost of the Service as set out in the price list by twelve (12). The aforementioned limitations shall not apply to losses incurred as a result of gross negligence, willful misconduct, or to Claims under 13.
For the avoidance of doubt, Nofence shall in no event be liable for any loss or claim connected to animals moving outside of the grazing area.
Nofence may make any further developments, alterations or changes to the Software and Firmware as are deemed necessary or appropriate by Nofence in its sole discretion, including but not limited to automatic updates of the Software, provided that such developments, alterations, changes and updates shall not result in the removal of functionality or degradation in performance of the Solution for the Subscriber. The Subscriber will normally not be notified in advance of any minor updates or error rectifications related to the Software or Firmware. If updates related to the Software require the participation of the Subscriber, he or she will receive notification of available updates and information about the installations.
16 Force Majeure
If an extraordinary situation outside the control of the Parties should occur, which makes the performance of the obligations under this Agreement 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. In Force Majeure situations, the other Party may only terminate the Agreement 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. Each of the Parties shall cover their own costs associated with terminating the Agreement pursuant to Clause 16, provided that the Subscriber shall pay the agreed Subscription Fees for the period prior to the Agreement coming to an end. The Parties may not present other claims against each other due to the Agreement coming to an end pursuant to this Clause 16.
17 General Provisions
17. 1 Assignment
The applicable Nofence entity may freely assign its rights and obligations under this Agreement to any third party by providing prior written notice to the Subscriber.
The Subscriber may not assign any of its rights and obligations under this Agreement to any third
party without the applicable Nofence entity's prior written consent.
The failure of either Party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder.
Any notice or other communication required or permitted to be given under this Agreement must be in writing and is effective when delivered personally to the Party specified in the relevant Clause, or when received either: (i) via certified or registered mail, return receipt requested, postage prepaid; (ii) via express mail or reputable courier service by such Party at the address set forth in the Order; or (iii) via electronic mail to firstname.lastname@example.org. A Party may designate a different address by notice to the other Party, given in accordance with this Clause 17.3.
If any term, condition or provision of this Agreement is found by the court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms, conditions and provisions hereof or the whole of this Agreement, but such term, condition or provision will be deemed modified to the extent necessary in the court's opinion to render such term, condition or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the Parties' intent and agreement set forth herein.
17.5 Entire Agreement
This Agreement sets forth the entire understanding between the Parties and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof, and no other agreements, representations, warranties or other matters, whether oral or written, will be deemed to bind the Parties with respect to the subject matter hereof.
18 Governing Law and Dispute Resolution
This Agreement and the Parties' rights and obligations hereunder shall be governed by Norwegian law. Each Party irrevocably agrees that the Oslo district courts (Oslo Tingrett) shall have exclusive jurisdiction as the first instance to settle any dispute, controversy or claim arising out of, or in connection with this Agreement, or its subject matter or formation (including non-contractual disputes or claims).