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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).

2 Definitions

  1. "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.
  2. "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.
  3. "DAP-terms" means Delivered At Place as defined under the Incoterms ® 2020.
  4. "Effective Date" means the date as set out in the Order and as defined in Clause 9.1. 
  5. "Firmware" means Nofence's proprietary computer software programs installed on or embedded in the Hardware provided hereunder, in machine-readable form only.
  6. "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. 
  7. "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.
  8. "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. 
  9. "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.
  10. "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.
  11. "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. 
  12. "Support" has the meaning given to such a term in Clause 7. 
  13. "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.
  14. "Solution" means the Hardware, the Firmware and/or the Software specified in the applicable Order that Nofence provides to Subscriber under this Agreement.
  15. "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. 
  16. "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.
  17. "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 sales@nofence.no, 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

6.1 License

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.

6.2 Restrictions

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, including but not limited to Solution Data) 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. 

In order to fulfill its obligations under the Agreement, Nofence will process personal data such as the Subscriber's  name, address,  email address,  telephone  number  and  relevant  payment  information. For more information, see our Privacy Policy.

7 Support

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

9.1 Term

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.

9.2 Termination

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.

10 Payment

10.1 Hardware

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 Confidentiality

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.

13 Indemnification

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.

15 Amendments

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. 

17.2 Waiver

The  failure  of  either  Party  to  exercise  any  right  provided  for  herein,  shall  not  be  deemed  to  be  a waiver of any right hereunder.

17.3 Notice

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 legal@nofence.no. A Party may designate a different address by notice to the other Party, given in accordance with this Clause 17.3.

17.4 Severability

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).