Terms and conditions

1 Scope of Agreement

These general terms (General Terms) apply to all Services, Software and Products, including maintenance and consultancy services (together, or individually, referred to as the Deliverables) delivered by Gapit AS (Gapit) to Gapit’s customers (the Customer). The General Terms together with any applicable order confirmation (Order Confirmation) and any additional delivery terms to further describe the relevant Deliverables (Delivery Terms) are together referred to as the Agreement and shall govern the delivery and use of the Deliverables. In the event of contradiction, the special Delivery Terms take precedence over the General Terms.

Gapit and the Customer are individually referred to as a Party and collectively as the Parties.

Orders are placed by the Customer, either by:

Customer accepting the offer sent to Customer by Gapit, or by
Customer placing an order through communication/e-mail.

Under both circumstances, an Order Confirmation is used to outline the contents of the order placed, under which the Customer is confirming its acceptance of the General Terms and any applicable Delivery Terms, together confirming the content and date of the Agreement.

In the event of errors on the Gapit website or in an individual offer from Gapit, Gapit shall have the right to correct an Order Confirmation based on the error. Gapit may decline, correct, or cancel any order for any reason at any time prior to the commencement of the Deliverables.

Unless made part of the Delivery Terms, any technical information such as drawings, brochures, or other as set out on Gapit’s websites are for user guidance only.

The Customer representative acting on Customer’s behalf, is assumed to have valid authorisation from the Customer.

These General Terms represent a translation of the original Norwegian language version. In case of conflict or inconsistencies, the Norwegian version prevails.

2 Definitions

In addition to the capitalized terms defined elsewhere in the Agreement, the following terms shall have the meaning ascribed to them as follows:

Agreement means these General Terms, and if relevant, together with applicable Order Confirmation and/or Delivery Terms. The Agreement governs Customer’s use of the Deliverables ordered from Gapit (and delivered by Gapit).

Customer Data means all materials provided by Customer to Gapit either through the cooperation under the Agreement, or through the use of the Deliverables, including, but not limited to personal data, order/financial information, text, graphics, and other materials generated in any form or media.

Deliverables means the Services, Software and/or Products delivered by Gapit, either directly under an Agreement with Gapit, or by a Vendor or Manufacturer under the terms of such Vendor and/or Manufacturer.

Delivery Date means the time when the Customer receives the Deliverables at the agreed location or when the Deliverables are made available to the Customer or as otherwise as agreed by the Parties.

Delivery Terms means the relevant document which includes additional delivery terms and description of the Deliverables.

Documentation means the service description or any other document that describes the Deliverables.

Installation Date means the day when Gapit has provided notice to the Customer concerning completed installation of Deliverables.

Manufacturer means the relevant contractor which may deliver the Deliverables ordered from Gapit, based on the General Terms and any applicable Manufacturer terms (between Customer and Manufacturer) for the relevant Product. Gapit is not part of the Manufacturer terms.

Normal working hours means Monday - Friday (on working days in Norway) 08:00-16:00.

Order Confirmation is used to outline the contents of the order placed, under which the Customer is confirming its acceptance of the General Terms and any applicable Delivery Terms, together confirming the content and date of the Agreement.

Products means the hardware including any embedded software, as included in the Deliverables.

Services means services delivered by Gapit and as agreed between Parties, including, but not limited to, support services, cloud services, license services, consultancy, maintenance and other professional services.

Software means the software in object version, as delivered under these General Terms, and as identified in an offer and/or Order Confirmation.

Subscription means a licensing and delivery model in which the Deliverables are delivered on a subscription basis.

Subscription Date means the date of the Order Confirmation, on which the Subscription Term commences.

Subscription Term means the subscription period for the Deliverables which are specified in the General Terms, in the Gapit offer and/or the Order Confirmation.

Vendor means the relevant supplier which may deliver the Deliverables ordered by Customer from Gapit, based on Vendor Terms between Vendor and Customer.

Vendor Product means product, Software and/or service identified in an offer or Order Confirmation and provided by Vendor according to the Vendor Terms.

Vendor Terms means the services-specific vendor agreement entered into by Vendor and Customer under the relevant Order Confirmation. Vendor Terms, placed on Gapit, govern the access and use of the Vendor Product(s). For the avoidance of doubt, Gapit is not a party to and assumes no liability under the Vendor Terms.

3 Fees and delivery conditions

All invoices shall be specified sufficiently so that the Customer may check conformity with what is agreed. Hourly rates and number of hours accrued shall be specified. If not otherwise agreed to by the Parties, all invoices are payable within 14 calendar days from the invoice date. Unless stated otherwise, all fees are stated and payable in Norwegian kroner.

Unless otherwise specified in the Delivery Terms and/or Order Confirmation, all prices are stated excluding value added tax, but including customs duties and any other indirect taxes.

In case of payment default, Gapit will notify the Customer and charge the Customer a late fee and claim interest on overdue payment pursuant to the Norwegian Act on interest on overdue payments.

If the Customer has not paid the overdue amount with the addition of late payment interest within thirty (30) calendar days from the due date, Gapit may send a written notice to the Customer, stating that the Agreement will be terminated for breach.

Gapit may retain a security interest in all Products until paid for in full.

Upon receipt of Deliverables, the Customer shall inspect the packaging for damage, before the carrier leaves the place of delivery. If the Customer discovers damage to the packaging, this must be noted on the consignment note or equivalent and reported to Gapit as soon as possible.

The Customer may through Gapit, request a return of the Delivery against a fee, if return is made within 2 weeks after delivery, and only if the Manufacturer or Vendor accepts such return under its terms. Customer must not break the seal prior to returning the Deliverables. Gapit shall have the right to rejects such requests.

All Products are delivered Ex Works (INCOTERMS 2020) from the Gapit address set out in the Order Confirmation. Any shipping and freight costs will be invoiced to the Customer. If delivery cannot take place due to circumstances on the Customer's side, Gapit may, at the cost of the Customer, arrange storage of the goods until the Customer is ready to receive the delivery. Gapit is entitled to charge warehouse rent and all other costs such storage incurs.

Disbursements, including travel and subsistence costs, will be invoiced and shall be reimbursed by Customer pursuant to the Government Travel Allowance Scale applicable at any given time, unless otherwise agreed. Supplement for travel time carried out between 16 and 20 on working days is 50 % of the ordinary hourly rate. Supplement for travel time carried out between 20 and 08 on working days, during public holidays or during weekends is 100 % of the ordinary hourly rate.

Unless otherwise agreed to between the Parties, all consultancy services are delivered on a time and material basis and carried out within Normal working hours. If the Customer orders service, support, operational or maintenance services without a prior agreed Response agreement, or such services are carried out outside the agreed Service period, additional Callout fees may apply.

4 Terms and conditions for Software, Services and equipment from Manufacturer

For orders relating to Software, Services or equipment delivered partly or wholly by Manufacturer, the General Terms apply, together with the relevant Manufacturer’s terms for the relevant Deliverable, including but not limited to the Manufacturer’s terms relating to user rights, pricing, warranties and termination. For the avoidance of doubt, Gapit assumes no rights or obligations under the Manufacturer’s terms, or for the delivery of Manufacturer’s part of the Delivery, as these are entered into between the Customer and the relevant Manufacturer directly.

The Customer is responsible for familiarizing itself with the applicable Manufacturer terms.

5 Changes to General Terms, Deliverables and Prices

All changes to the General Terms shall be made in writing and upon mutual acceptance of both Parties.

Notwithstanding the above, Gapit has the right to make changes in Deliverables, including full or partly cessation of a Deliverable. Gapit may also make changes in prices and terms including changes to these General Terms. Gapit shall notify the Customer in an appropriate manner, and no later than one month before the change takes effect. Replacement units for defective parts of the Deliverables replaced under a support and maintenance agreement may be new or like new quality but shall not be seen as a change of Deliverables.

Gapit reserves the right to adjust prices due to currency and/or changes in price index, without further notice to the Customer. Should the Customer wish to change the agreed Services which leads to different scope of the delivery obligations than assumed, Gapit is entitled to demand a change in the consideration due and/or time schedules.

Changes on the part of the Manufacturer and Vendor, such as changes in the Deliverables, for instance changes in the cloud service's functionality or changes in the conditions for using such cloud services, apply to the Customer and may affect the Customer's ability to use such Deliverables.

6 Warranty Period

For Deliverables from Manufacturers and Vendors, the relevant Manufacturer or Vendor terms shall apply and prevail. The Customer is responsible for reading and complying with such terms, and other contract terms that come with standard equipment, third-party cloud-services and software. In the same way, the Customer is responsible for complying with conditions that apply to the use of third-party cloud services.

7 Intellectual Property Rights

The Customer has the right to use the various parts of the Deliverables as agreed to in the Delivery Terms or subject to the terms of the Manufacturer and/or Vendor as applicable.

If not otherwise agreed to under the Delivery Terms or in the Order Confirmation, and if, during the performance of the Deliverables, Gapit creates material that enjoys intellectual property protection, Gapit retains all intellectual property rights, title, and interest to such material and documentation, including without limitation all software, virtual machines, and other technology used to provide the Deliverables and all logos and trademarks reproduced through the course of delivery. This ownership shall apply to all copies and portions of such material, and all improvements, enhancements, and derivative works thereto.

Gapit grants the Customer with a limited right to use such material for its internal business purposes, in the term of the Agreement, as a non-exclusive right of use. The Customer may not transfer the user rights to such material to any third-party, without Gapit’s prior written consent.

The Customer’s user rights to Deliverables from Manufacturers and/or Vendors, are subject to the applicable Manufacturer or Vendor Terms.

8 Infringement of Third-party rights

If a component of the Deliverables for which Gapit is responsible becomes, or in Gapit’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, Gapit will promptly take the following actions, at no additional charge to Customer, in the listed order of priority: (i) secure the right to continue using the relevant component, or (ii) replace or modify the component to make it non-infringing. If neither of such actions can be accomplished by Gapit using commercially reasonable efforts, and only in such event, Gapit will remove the component from the Deliverables. Under such circumstances, the Customer shall be entitled to return the relevant component of the Deliverables and be refunded the associated share of the purchase price. The Customer is not entitled to raise further claims against Gapit as a result of the above mentioned.

9 Errors and breach of contract

Should one of the Parties fail to comply with its obligations under the Agreement then a breach of contract on that Party has occurred.

The Party wishing to plead a breach of contract and claim damages must complain, without unreasonable delay and at the latest within 60 days, to the other Party after the breach of contract was discovered. Claims related to consultancy services performed by Gapit shall be raised at the latest within 7 days after such service has been carried out. All complaints must be made in writing and shall contain a detailed specification of the error or deficiency. There is no breach of contract, and Gapit has no liability if the situation is caused by circumstances related to the Customer or by force majeure or by other circumstances beyond Gapit’s control. Gapit has no liability under a Vendor’s, an Manufacturer or other third-party vendor’s deliveries and/or delivery terms.

Damage that it is not possible to detect on a Product before the packaging has been removed must be reported to Gapit without undue delay for Products sent from Norway, and no later than 7 days from the Delivery Date for Products sent from abroad. When returning damaged or defective Products according to this provision, the Customer shall send Gapit pictures showing both packaging and goods from several different angles that enable Gapit to assess the condition of the packaging and the goods. This applies even if the packaging is undamaged. Upon return / complaint, the Customer must take care of received packaging until the case has been clarified.

If the Customer has not notified for claims or damages according to this clause, Gapit may reject later complaints and claims related to defects or damage that should have been discovered during inspection of the packaging.

In the case of defects, Gapit is entitled to at his own choice to remedy the defect, to redeliver, or to grant a proportionate reduction in price. Gapit shall commence the effort of curing the breach of Agreement without undue delay and carry Gapit’s costs relating to such remedy or redelivery, with the exception of freight and insurance linked to the transport of the Products from the Customer to the address stated by Gapit for overhauls/repairs.

Remedies will be carried out during Normal working hours. Should the Customer so require, remedy may also take place outside these hours, or remedy may take place on the Customer’s premises, but then as agreed between the Parties, and in both cases in accordance with Gapit’s ordinary hourly rates for this type of work. If possible, Gapit reserves the right to remedy defects online.

If one of the parties materially breaches its obligations under the Agreement, then Section 13.2 shall apply. In the case of termination for material breach, the Customer shall pay for the Deliverables carried out until the date of termination.

10 Limitation of Liability

In the event of a breach of the Agreement, the party affected may claim compensation for direct documented financial loss according to general principles for compensation in contractual relationships with the following limitations:

Neither Party will be liable for any indirect or consequential loss, or for any loss of data. Indirect loss includes, but is not limited to, loss of profits or earnings of any kind, loss due to shutdowns, loss resulting from not being able to utilize the Deliverables, damage to other objects, intangible assets or intellectual property rights, data loss, and claims from third parties and Vendors or Manufacturers.
A Party’s total liability for each single instance shall not exceed 50 % of the payment made for the relevant part of the Deliverables (excl. VAT) during the last six (6) months. However, the total overall responsibility under the Agreement shall under no circumstances exceed NOK 500,000 (excl VAT).

11 Term and termination

11.1 Term

The Agreement and Subscription Term shall commence as of the date of the Order Confirmation, and, unless earlier terminated as provided herein or otherwise agreed, shall continue in effect until terminated.

11.2 Termination for convenience

For Deliverables from Vendors and Manufacturers, the Customer may not terminate other than as stated in the Vendor- or Manufacturer’s terms.

11.3 Termination for Cause

The Agreement may be terminated as follows:

If a Party materially breaches a term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the Agreement upon written notice to the breaching party;
if a Party becomes insolvent or makes an assignment for the benefit of creditors, then the other Party may terminate the Agreement effective immediately upon written notice to the other party; or
if a Party is dissolved or liquidated, then the other Party may terminate the Agreement effective immediately upon written notice to the other Party.

11.4 Termination of Subscriptions

The Subscription Term will run until actively terminated by Customer’s notification in writing to Gapit.

11.5 Effects of Termination

Upon termination or expiry of the Agreement, the following provisions shall apply:

All Fees incurred but unpaid up until termination date shall become immediately due and payable to Gapit by Customer;
If not otherwise agreed, the Customer shall forthwith cease to use the Deliverables and shall promptly return all copies of the Documentation to Gapit or else destroy those copies of Documentation upon Gapit’s request.
All rights and authorizations granted to Customer under the Agreement shall immediately cease.
Gapit will assist the Customer in good faith in migrating the Customer Data. Gapit's fees for such migration will be calculated on the basis of Gapit's hourly rates applicable from time to time and the expenses incurred by Gapit's subcontractors. Notwithstanding the foregoing, the Customer will be responsible for migrating the Customer Data;
Unless otherwise agreed to with the Customer, Gapit will delete all Customer Data upon 30 days after termination.

12 Confidential information

Neither Parties may transfer to third parties, or allow unauthorized persons access to confidential information, including but not limited to Customer Data, information regarding the other Party's systems, technical facilities, personnel matters, business analyzes and calculations, or other trade secrets that are not publicly known, which a Party becomes aware of in connection with entering into and performance of the Deliverables under the Agreement. This applies to the Parties’ own employees, and to any third-parties’ employees.

13 Information Security

13.1 Information Security Controls

Each Party shall be responsible for establishing and maintaining information security program that includes appropriate technical and organizational measures to (i) ensure the security and confidentiality of Customer Data; (ii) protect against unauthorized access, alteration, destruction, disclosure, loss, or use of Customer Data that could result in substantial harm to Customer or any of its customers and/or end-users; (iii) protect against any reasonably anticipated threats or hazards to the security or integrity of Customer Data. Parties acknowledge that Customer remains ultimately responsible for maintaining information security of its own systems, equipment (including but not limited to servers, workstations, routers, switches), network, data communication lines, as required to operate the Products.

13.2 Trained Personnel

Each Party shall ensure that any of its personnel and/or contractors authorized to process Customer Data or Confidential Information have been appropriately trained and are aware of that Party’s information security policies and procedures. Each Party must conduct appropriate information security awareness training for all its personnel and contractors prior to being appointed to work on Customer Data. Thereafter, each party must introduce information security training routines to maintain the appropriate level of information security awareness.

14 Personal Data

Gapit and the Customer may exchange personal information as necessary for the purpose of administration and follow-up of the Agreement. For such processing of personal data, each of the Parties is responsible for its own processing, and each of the Parties is responsible for compliance with the Norwegian Personal data Act and the EU Regulation 679/2016 GDPR (GDPR).

The Customer is acting as a controller for all processing of personal data that the Customer does using equipment and software, including cloud services, provided by Gapit. Gapit is not responsible for breaches of personal data security caused by the Customer's use of equipment, software or cloud services.

If Gapit is to process personal data on behalf of the Customer, acting as a data processor, a data processor agreement must be entered into between Gapit and the Customer, in accordance with the Norwegian Personal data Act and the EU Regulation 679/2016 GDPR (GDPR).