APPEAR STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES
Table of content
Drawings, Specifications and Descriptions
Intellectual Property Rights and Software Licence
Liability for Defects and Batch Remedy
Allocation of Liability for Damage Caused by the Product
Intellectual Property Indemnity
Availability of Support and Upgrades
Relationship to claims forwarded under a Support Agreement
Preamble
- These are the terms and conditions (the “Conditions”) that shall apply to the supply of products and services by Appear AS (“Appear”) unless otherwise agreed. Any modifications of or deviations from them in relation to a specific purchase order must be agreed in writing between the company placing the purchase order (“Purchaser”) and Appear, both of which are hereinafter individually referred to as a “Party” and collectively the “Parties”. The burden of evidence in respect of the existence and content of any modifications or deviations from these Conditions shall be upon the Party alleging that such modifications or deviations are agreed.
By placing a purchase order with Appear, the Purchaser agrees to be bound by the terms and conditions of these Conditions. All purchase orders must in order to be binding upon Appear, be confirmed in an order confirmation. Once an order confirmation is issued by Appear a contract for the respective purchase is entered into between the Parties. For the purpose of these Conditions such point in time shall be referred to as “the formation of the contract”.
Any product(s) or services (s) to be supplied under these Conditions is (are) hereinafter referred to as the “Product” and “Services” respectively.
Wherever these Conditions use the term “in writing”, this shall mean by letter, fax or electronic mail unless used in the context “agreed in writing” in which case it shall mean by a document signed by both Parties or confirmed in writing by an authorized representative of both Parties.
Drawings, Specifications and Descriptions
- All drawings, specifications and technical documents relating to the Product or its manufacture or the Services submitted by one Party to the other, prior or subsequent to the formation of the contract, shall remain the property of the submitting Party. Drawings, specifications, technical documents or other technical information received by one Party shall not, without the consent of the other Party in writing, be used for any other purpose than that for which they were provided. They may not, without the consent in writing of the submitting Party, otherwise be used or copied, reproduced, transmitted or communicated to a third party.
- The specifications applicable to the Product or Services (the “Agreed Specification”) and as referred to in Clause 25 shall be (i) with respect to Products, only those set out in Appear’s standard datasheets (as current as at the date of formation of the contract) as amended and/or supplemented only by such other specifications, functions or other levels of performance (including interface specifications) as are specifically agreed in writing between the Parties and (ii) with respect to Services, as set out in a separate offer from Appear.
- Appear shall, not later than at the date of delivery, make available to Purchaser free of charge information and drawings which are necessary to permit the Purchaser to install, commission, operate and carry out routine maintenance of the Product. Such information and drawings shall be supplied in the number of copies agreed in writing or at least one copy of each. Appear shall not be obliged to provide manufacturing drawings for the Product or for spare parts.
Delivery. Passing of Risk
- Any agreed trade term shall be construed in accordance with the INCOTERMS in force at the formation of the contract.
If no trade term is specifically agreed in writing, the delivery shall be Ex works (EXW). The passing of risk for loss of and damage to the Products shall pass to Purchaser upon delivery Ex works, Oslo, or at the earlier date when the delivery could have occurred had the delivery not been postponed upon the Purchaser’s request according to Clause 12 below. If, in the case of delivery Ex works, Appear, at the request of the Purchaser, undertakes to send the Product to its destination, the risk will pass to Purchaser not later than when the Product is handed over to the first carrier. Partial shipments shall be permitted unless otherwise agreed in writing.
Time for Delivery. Delay
- If the Parties, instead of specifying the date for delivery, have specified a maximum period of time by which delivery shall take place as confirmed in the order confirmation, such period shall start to run as soon as the order confirmation is issued, all official formalities have been completed, payments due at the formation of the contract have been made, any agreed securities have been given and any other preconditions have been fulfilled.
- If Appear anticipates that it will not be able to deliver the Product within the time period specified for delivery, it shall forthwith notify the Purchaser thereof in writing, stating the reason, and, if possible, the time when delivery can be expected.
- If delay in delivery is caused by any of the circumstances mentioned in Clause 51 or by an act or omission on the part of the Purchaser, including suspension under Clauses 16 or 51, the time for delivery shall be extended by a period which is reasonable having regard to all the circumstances in the case. This provision applies regardless of whether the reason for the delay occurs before or after the agreed time for delivery.
- If the Product is not delivered within the agreed time allowed for delivery (in accordance with Clauses 6 and 8), and this is not due to Purchaser’s request for postponement according to Clause 12 or any other circumstance for which Purchaser is responsible, the Purchaser is entitled to liquidated damages from the agreed delivery date, or the last day of the time period in which delivery should have taken place. The liquidated damages shall be payable at a rate of 0.5 per cent of the purchase price for each completed week of delay. If only part(s) of the Product is delayed, the liquidated damages shall be calculated on that part of the purchase price which is attributable to such part of the Product as cannot in consequence of the delay be used as intended by the Parties. The liquidated damages shall not exceed 7.5 per cent of the basis for calculation of liquidated damages according to the foregoing.
The liquidated damages become due at the Purchaser’s demand in writing, but not before delivery has been completed or the contract is terminated under Clause 10. The Purchaser shall forfeit his right to liquidated damages if he has not lodged a claim in writing for such damages within six months after the time when delivery should have taken place.
- If the delay in delivery is such that the Purchaser is entitled to maximum liquidated damages under Clause 9 and if the Product is still not delivered, the Purchaser may in writing demand delivery within a final reasonable period which shall not be less than one week. If Appear does not deliver within such final period and this is not due to any circumstance for which the Purchaser is responsible, then the Purchaser may by notice in writing to Appear terminate the contract in respect of such part(s) of the Product as cannot in consequence of Appear’s failure to deliver be used as intended by the Parties.
If the Purchaser terminates the contract he shall be entitled to compensation within the limitations set out in Clause 55, for the loss he has suffered as a result of Appear’s delay. Any liquidated damages paid shall be deducted from the total compensation. The total compensation, including the liquidated damages which are payable under Clause 9, shall not exceed 15 per cent of that part of the purchase price which is attributable to such part(s) of the Product in respect of which the contract is terminated.
- Liquidated damages under Clause 9 and termination of the contract with limited compensation under Clause 10 are the only remedies available to the Purchaser in case of delay on the part of Appear. All other claims against Appear based on such delay shall be excluded, except where Appear has been guilty of “Gross Negligence”. In these Conditions “Gross Negligence” shall mean an act or omission which is qualified blameworthy and which gives rise to a strong reproach for a lack of attentiveness.
- If the Purchaser anticipates that he will be unable to take delivery of the Product at the agreed delivery date or at any time during the period allowed for delivery, the Purchaser shall forthwith notify Appear in writing hereof, stating the reason therefore and, if possible, the time when he will be able to take delivery.
Upon Purchaser’s written request Appear shall arrange for storage of the Product at the risk and expense of the Purchaser until such later point in time as is agreed in writing between the Parties. Appear shall likewise, if the Purchaser so requires in writing, insure the Product(s) in storage at the Purchaser’s expense, until the postponed delivery date which is agreed between the Parties. Notwithstanding any arrangement for postponement of the delivery according to the foregoing, Appear shall be entitled to invoice the Purchaser, and the Purchaser shall be obliged to pay, any invoice as if delivery had taken place according to what was originally agreed.
Price and Payment
- Unless otherwise agreed in writing, the purchase price for Products shall be Appear’s quoted list price and shall be invoiced as follows: 30% at the formation of the contract; and 70% when Appear notifies the Purchaser that the Product, or the essential part of it, is ready for delivery. Such invoices shall be payable by the Purchaser forthwith following receipt of invoice and in any event prior to delivery.
- Unless otherwise agreed in writing, the purchase price for Services shall be calculated from Appear’s quoted hourly rates and shall be invoiced with 50% of the estimated total amount at the formation of the contract and the balance on completion of the Services. Such invoices shall be payable by the Purchaser forthwith following receipt of invoice.
- Whatever the means of payment used, payment shall not be deemed to have been effected before Appear’s account has been fully and irrevocably credited.
- If the Purchaser fails to pay by the stipulated date as set out in any invoice to be provided under these Conditions, Appear shall be entitled to interest from the day on which payment was due. The rate of interest shall be 8 percentage points above the rate of the main refinancing facility of the European Central Bank in force on the due date of payment. In case of late payment Appear may, after having notified the Purchaser in writing, suspend its performance of the contract until it receives payment.
- All prices under this Agreement will automatically be adjusted at the beginning of each calendar year by an amount equivalent to the increase in the retail price index (the main index) of Statistics Norway, with the initial reference index value being the index value for the month in which the Agreement was signed. All prices under this Agreement may also be adjusted at the beginning of each calendar year with 30 days’ prior written notice to the Purchaser to the extent that (i) rules or administrative decisions pertaining to public taxes and/or (ii) prices for third-party deliverables included in the Products and/or Service are amended in a way that affects the consideration or costs of Appear.
Retention of Title
- Title to Software (as defined in Clause 20) shall at all times vest in and be owned by Appear or its suppliers. The hardware of which the Product consists of shall remain the property of Appear until paid for in full to the extent that such retention of title is valid under the applicable law. The Purchaser shall at the request of Appear assist Appear in taking any measures necessary to protect Appear’s title to the Product in the country concerned. The retention of title shall not affect the passing of risk under Clause 5.
Intellectual Property Rights and Software Licence
- All Intellectual Property Rights arising under the contract shall vest in and be owned by Appear, its suppliers and/or licensors absolutely and the Purchaser shall acquire no right title or interest in the same save as agreed in writing. In these Conditions “Intellectual Property Rights” shall mean patents, trademarks, service marks or business names, registered designs, copyrights, design rights, utility models, topography rights, applications to register the aforementioned rights, trade secrets, knowhow and rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world.
- Appear shall unless otherwise follows from Clause 24 below, grant the Purchaser a worldwide non-exclusive non assignable non-transferable license to use the Software (in executable form only) and the Products for the Permitted Purpose and in accordance with the provisions of this Clause 20. In these Conditions (i) “Software” means any computer program, firmware or other software that Appear has agreed to supply the Purchaser; and, (ii) “Permitted Purpose” means the installation, configuration and use for normal business purposes of the Software.
- Upon Appear’s prior written approval in each case, the Purchaser shall be entitled to grant a sublicense to any third party user of the Products on the terms and subject to the conditions granted to the Purchaser under Clauses 19 to 24.
- The Purchaser may make copies of any Software for reasonable back up and disaster recovery purposes and, upon request, shall advise Appear of the location of any Software and back up copies. Save as mentioned in this Clause 22 the Purchaser shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify any Software in whole or in part except (i) as permitted by mandatory law (including without limitation the EC Council Directive on the legal
protection of computer programs (OJ 1991 L122/42); or (ii) with Appear’s prior written consent. - The licence granted under Clause 120-22 and any sublicense granted under Clause 21 shall not be limited in time save that Appear may immediately terminate such licence (and the right to continue any sublicense) to use the relevant Software and/or Products by notice in writing to the Purchaser if the Purchaser or any sub licensee breaches any term of the licence or sublicense (and such breach is incapable of remedy or is not remedied within a reasonable time of a request to do so), whereupon the Purchaser shall, at Appear’s direction, immediately return to Appear or destroy the Software and any back up copy (and procure that sub-licensees do the same) and certify in writing to Appear that this has been done.
- Purchaser appreciates and accepts that from time to time APPEAR may offer third party products or Products which includes third party technology and that other terms and conditions imposed by the licensors of such third party technology, may be applicable. By the placement of a purchase order which includes such third party software and/or technology, Purchaser hereby undertakes to comply, and to ensure that any sub licensee complies, with all such terms and conditions which are applicable to such third party licensed technology.
Without limiting the generality of the foregoing, Purchaser is solely responsible for obtaining (and for making sure that any sublicensee obtains) any third party license applicable to Purchaser’s (or any sublicensee’s) use of the Products, hereunder, but not limited to, various patent portfolio licenses from MPEG LA, LLC.
Liability for Defects and Batch Remedy
- Pursuant to the provisions of Clauses 25-41 inclusive, Appear shall (i) remedy any defect or nonconformity in the Product (s) (hereinafter termed “Defect(s)”) arising from faulty design, materials or workmanship which result in a failure of the Product to conform in all material respects to the Agreed Specification, cf. Clause 3; or (ii) re-perform Services to the extent that they were provided otherwise than with reasonable care and skill.
- Appear’s liability is limited to Defects which appear within a period of 12 months from delivery (hereinafter termed the “Warranty Period”).
- When a Defect in a part of the Product has been remedied, or a replacement Product has been provided, Appear shall be liable for Defects in the repaired or replaced Product under the same terms and conditions as those applicable to the original Product for the remainder of the original Warranty Period or three months from the provision of the repair or replacement, whichever is the longer.
- The Purchaser shall without undue delay notify Appear in writing of any Defect which appears. Such notice shall under no circumstance be given later than two weeks after the expiry of the original Warranty Period or any extension thereof pursuant to Clause 27. The notice shall contain a description of the Defect. If the Purchaser fails to notify Appear in writing of a Defect within the time limits set forth in this Clause 28 and Clause 39 below, he loses his right to have the Defect remedied.
- On receipt of the notice under Clause 28 Appear shall remedy the Defect without undue delay and at its own cost. It is Appear’s intention to investigate, replicate, identify and remedy Defects by remote internet access wherever possible, and the Purchaser explicitly agrees to provide all reasonable assistance to facilitate such remote access. If repair cannot be carried out by remote access the Product(s) and/or parts thereof shall, at Purchaser’s cost, be returned to Appear’s facilities for repair or replacement. Should it be necessary to send engineers to Purchaser’s site, Purchaser shall pay the additional travel and accommodation costs incurred upon Appear.
- If the Purchaser has given such notice as mentioned in Clause 28 and no defect is found for which Appear is liable, Appear shall be entitled to charge on a time and materials basis for work carried out. The Purchaser shall pay such charges within 30 days of receipt of an invoice in respect of the same.
- Unless otherwise agreed, necessary transport of the Product and/or parts thereof from Appear to the Purchaser after the remedying of Defects for which Appear is liable, shall be at the risk and expense of Appear.
- The Purchaser shall bear any additional costs which Appear incurs for sending engineers to the Purchaser’s site, repair, dismantling, installation and transport as a result of the Purchaser being unable to provide remote internet access.
- Defective parts which have been replaced shall be made available to Appear and shall become its property.
- In the event that it is agreed between the Parties that the Purchaser shall collect the Product or parts thereof at Appear’s premises, or if for any reason the Product or any part thereof which has been shipped from Appear according to Clause 31, is returned to Appear, Appear shall be entitled to dispose of any such Product or parts thereof which remain uncollected for more than 60 days.
- If, within a reasonable time, Appear does not fulfil its obligations under Clause 29, the Purchaser may by notice in writing fix a final, reasonable time for completion of Appear’s obligations which shall in no event be less than 30 days. The Parties agree that in the case of Defects attributable to software errors such reasonable time shall be construed in the light of the time taken to properly investigate and replicate a fault, develop a fix and test the fix. Appear shall not be in breach of its obligations under Clause 29 whilst there is a satisfactory workaround in place and Appear are actively and diligently developing a permanent solution.
- Where the Defect has not been successfully remedied and a workaround is not in place, within the final time stipulated for completion under Clause 35, a) the Purchaser is entitled to a reduction of the purchase price in proportion to the reduced value of the Product, provided that under no circumstance shall such reduction exceed 15 per cent of the purchase price, or b) where the Defect is so substantial as to significantly deprive the Purchaser of the benefit of the contract, the Purchaser may terminate the contract by notice in writing to Appear and return the Product. The Purchaser is then within the limitations set out in Clause 55 entitled to compensation for the loss he has suffered up to a maximum of 15 per cent of the purchase price.
- Appear is not liable for defects arising out of materials provided, or a design stipulated or specified by the Purchaser.
- Appear is liable only for Defects which appear under the conditions of operation provided for in the contract and under proper use of the Product. Appear’s liability does not cover Defects which are caused by extremes of temperature or humidity, ingress of particles, faulty maintenance, mishandling, incorrect installation or faulty repair by the Purchaser, or by alterations or modifications carried out without Appear’s consent in writing. Appear’s liability does not cover normal wear and tear or deterioration.
- Notwithstanding the provisions of Clauses 25-38 Appear shall not be liable for Defects in any part of the Product or any replaced Product for more than two years from the beginning of the original Warranty Period.
- Where the Contract provides for the supply of 50 or more of the same type of Product or part(s) thereof to be delivered within a three month period, the following batch remedy shall apply: In the event that 10% or more of the same type of Product or part thereof, exhibit the same Defect, Appear shall supply replacement Products or part(s) thereof (in advance of the return of the affected Products or part(s) thereof to Appear) not only for the Products or respective part(s) thereof where the Defect has become apparent, but also for all Products or part(s) thereof of that type supplied during the said three month period.
- Save as stipulated in Clauses 25-40, Appear shall not be liable for defects. This limitation of Appear’s liability shall not apply if Appear has been guilty of Gross Negligence as defined in Clause 11. In addition, notwithstanding anything in the Warranty Period to the contrary, Appear may, at any time and in its sole discretion, cease offering Software updates, changes, replacing specific parts, correcting certain types of Defects in the Products or condition the terms set forth in the Warranty Period in any other way.
Allocation of Liability for Damage Caused by the Product
- Appear shall not be liable for any damage to property caused by the Product after it has been delivered and whilst it is in the possession of the Purchaser. Nor shall Appear be liable for any damage to products manufactured by the Purchaser, or to products of which the Purchaser’s products form a part. If Appear incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Purchaser shall indemnify, defend and hold Appear harmless. If a claim for damage as described in this Clause 42 is lodged by a third party against one of the Parties, the latter Party shall forthwith inform the other Party thereof in writing. Appear and the Purchaser shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product. The limitation of Appear’s liability in the first paragraph of this Clause 42 shall not apply where Appear has been guilty of Gross Negligence as defined in Clause 11.
Intellectual Property Indemnity
- Appear shall fully indemnify and hold harmless the Purchaser against any damages, costs and expenses (including legal costs) excluding special, indirect or consequential damages which may be finally awarded against the Purchaser by a court of competent jurisdiction as a result of any claim to the effect that the Product or the use by the Purchaser of the Product in accordance with this Agreement infringes upon the Intellectual Property Rights of any third Party. The
above indemnity shall not apply where (i) the infringement claim is attributable to use of the Product other than for the Permitted Purpose; (ii) to the extent that the infringement arises from use by Appear of materials provided by the Purchaser or implementation by Appear of features specifically requested by the Purchaser; (iii) in the event of failure by the Purchaser to implement changes, replacements or new releases recommended by Appear where the infringement would have been avoided by such changes, replacements or new releases; or (iv) in the event of failure by Purchaser to comply with Clause 24 above.
- The Purchaser shall notify Appear in writing of any such claim as referred to in Clause 43 as soon as reasonably practicable and shall give Appear full authority to conduct and/or settle all negotiations, proceedings and litigation arising from any such claim, and at Appear’s request and expense, shall give Appear all reasonable assistance in connection with the conduct of such negotiations, proceedings and litigation.
- The Purchaser shall fully indemnify and hold harmless Appear against any damages, costs and expenses (including legal costs) excluding special, indirect or consequential damages which may be finally awarded against Appear by a court of competent jurisdiction as a result of any claim to the effect that the use by Appear of materials supplied by the Purchaser or the implementation of features specifically requested by the Purchaser (together the “Purchaser Requirements”) infringes upon the Intellectual Property Rights of any third party. The above indemnity shall not apply where (i) the infringement claim is attributable to use or implementation of the Purchaser Requirements in a manner otherwise than that anticipated by the contract; or (ii) in the event of failure by Appear to implement changes, replacements or new releases of the Purchaser Requirements recommended by the Purchaser where the infringement would have been avoided by such changes, replacements or new releases.
- Appear shall notify the Purchaser in writing of any such claim as referred to in Clause 45 as soon as reasonably practicable and shall give the Purchaser full authority to conduct and/or settle all negotiations, proceedings and litigation arising from any such claim, and at the Purchaser’s request and expense, shall give the Purchaser all reasonable assistance in connection with the conduct of such negotiations, proceedings and litigation.
- The total liability of Appear and the Purchaser arising under or in connection with Clause 43 and Clause 45 respectively shall not exceed a sum equivalent to the contract value of the relevant purchase order.
Availability of Support and Upgrades
- It is Appear’s intention to continuously develop and enhance the products offered for sale. It is anticipated that such development and enhancement will be effected through software and firmware updates (“Software Upgrades”), by the replacement and substitution of new slot in hardware modules (“Module Upgrades”) and from time to time by developing new core hardware platforms (“Platform Upgrades”).
- Appear will endeavour to notify the Purchaser of the availability of Software Upgrades and Module Upgrades for Products purchased under the contract and the availability of Platform Upgrades. It is anticipated that the Purchaser will purchase such Software Upgrades and Module Upgrades as and when they become available.
- Appear offers support services to Purchaser according to Appear Standard Service and Support Agreement applicable from time to time. Support in relation to a specific Product must be purchased prior to the expiry of the Warranty Period applicable to the Product in question.
Force Majeure
- Either Party shall be entitled to suspend the performance of its obligations under the contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the control of the Parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause 51. A circumstance referred to in this Clause 51 whether occurring prior to or after the formation of the contract shall give a right to suspension only if its effect on the performance of the contract could not be foreseen at the time of the formation of the contract.
- The Party claiming to be affected by Force Majeure shall notify the other Party in writing without delay of the intervention and of the cessation of such circumstance. If Force Majeure prevents the Purchaser from fulfilling his obligations, he shall compensate Appear for expenses incurred in securing and protecting the Product.
- Regardless of what might otherwise follow from these Conditions either Party shall be entitled to terminate the contract by notice in writing to the other Party if performance of the contract is suspended under Clause 51 for more than six months.
Anticipated Non-Performance
- Notwithstanding other provisions in these Conditions regarding suspension, each Party shall be entitled to suspend the performance of its obligations under the contract, where it is clear from the circumstances that the other Party will not be able to perform its obligations. A Party suspending its performance of the contract shall forthwith notify the other Party thereof in writing.
Limitations of liability
- TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW AND SAVE AS OTHERWISE STATED IN THESE CONDITIONS, NEITHER PARTY SHALL BE LIABLE UNDER OR IN RELATION TO THE CONTRACT (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, INDEMNITY OR OTHER THEORY OF LAW) FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE; INCLUDING, BUT NOT LIMITED TO (I) LOSS OF PROFITS; (II) LOSS OF SALES; (III) LOSS OF TURNOVER; (IV) LOSS OF OR DAMAGE TO BUSINESS AND LOSS OF PRODUCTION; (V) LOSS OF OR DAMAGE TO REPUTATION; (VI) LOSS OF CONTRACTS; (VII) LOSS OF CUSTOMERS; (VIII) LOSS OF OR LOSS OF THE USE OF ANY SOFTWARE OR DATA; (IX) LOSSES OR LIABILITIES IN RELATION TO ANY OTHER CONTRACT; (X) LOSS OF THE ABILITY TO USE A NETWORK OR (XI) LOSS OF ADVERTISING REVENUE; AND FOR THE PURPOSES OF THESE CONDITIONS THE TERM LOSS INCLUDES A PARTIAL LOSS OR REDUCTION IN VALUE AS WELL AS A COMPLETE OR TOTAL LOSS.
- IN ADDITION TO THE APPLICABLE LIMITATIONS OF A PARTY’S LIABILITY WHICH MAY FOLLOW FROM SPECIFIC PROVISIONS OF THESE CONDITIONS, THE FOLLOWING GENERAL LIMITATION ON LIABILITY SHALL APPLY: TO THE FULLEST EXTENT PERMITTED UNDER THE APPLICABLE LAW AND SAVE AS OTHERWISE STATED IN THESE CONDITIONS, NEITHER PARTY SHALL BE LIABLE UNDER OR IN RELATION TO THE CONTRACT (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION, INDEMNITY OR OTHER THEORY OF LAW) FOR ANY LOSS OR DAMAGE EXCEEDING A SUM EQUIVALENT TO THE CONTRACT VALUE OF THE RELEVANT PURCHASE ORDER.
- THE LIMITATIONS OF LIABILITY SET OUT IN CLAUSE 55 AND 56 ABOVE SHALL NOT APPLY (I) TO THE EXTENT A PARTY HAS ACTED WITH GROSS NEGLIGENCE OR INTENT, OR (II) IN THE EVENT OF BREACH OF CLAUSE 20-24.
Relationship to claims forwarded under a Support Agreement
- To the extent that the Purchaser has entered, or during the Warranty Period or any extension thereof enters, into a separate support and maintenance agreement with Appear (the “Support Agreement”), the following shall apply: To the extent that the Purchaser in theory could forward a claim against Appear both under these Conditions and the Support Agreement based on the same Defect or circumstance(s), the Purchaser shall be free to forward a claim under either of the two agreements. However, once a claim for damages and/or any other remedy is forwarded in writing under these Conditions, the Purchaser shall be precluded from forwarding a claim against Appear under the Support Agreement related to the same Defect or circumstance(s) which substantiated a claim under these Conditions. Likewise, if Purchaser instead chooses to forward a claim in writing for damages and/or any other remedy under the Support Agreement, the Purchaser shall be precluded from forwarding a claim against Appear under these Conditions related to the same Defect or circumstance(s) which substantiated a claim under the Support Agreement.
Confidentiality
- Each Party agrees to protect and maintain the confidentiality of the other Party’s Confidential Information (as defined in Clause 59-60) and to use the other Party’s Confidential Information solely for purposes consistent with these Conditions, using a reasonable degree of care, but using at least that degree of care that a Party affords its own Confidential Information. Such protection shall be to prevent unauthorized disclosure, distribution or dissemination of such Confidential Information, or any part thereof, to any persons other than the Party’s employees, agents, officers, contractors and consultants who have a need to know such Confidential Information and who have undertaken an obligation to treat the same confidential.
- Confidential Information shall mean any information regarding the other Party’s business, including without limitation, information with respect to operations, procedures, methods, accounting, technical data, source code, object code, existing or potential customers, prices, roadmaps, or any other information which the other Party has designated as confidential.
- Confidential Information shall not include information which: (i) is or becomes generally available to the public other than by an unauthorized disclosure by a Party; or, (ii) is already in the possession of the recipient Party without restriction at the time of disclosure as evidenced by that Party; or, (iii) is or has been lawfully received by a Party from a third party who possesses the Confidential Information without any obligation of confidentiality; or, (iv) is developed independently by a Party without the use of Confidential Information.
- The Parties agree that any unauthorized disclosure of Confidential Information of the other Party may result in immediate irreparable harm which may not be adequately compensated for by money damages. Accordingly, in the event of a breach or threatened breach hereof, the affected Party shall be entitled to seek injunctive relief to restrain the other Party and its employees, agents, officers, contractors and consultants from disclosing, in whole or in part, any Confidential Information.
- In the event that either Party is required by law or by the court of any competent jurisdiction or authority to disclose Confidential Information of the other Party, the recipient Party will promptly notify the disclosing Party and tender to it the defence of such demand. Unless the demand will have been timely limited, quashed or extended, the recipient Party will thereafter be entitled to comply with such demand to the extent permitted by law. If requested by the Party to whom the defence has been tendered, the recipient Party will cooperate (at the expense of the requesting Party) in the defence of a demand. Nothing herein will obligate any Party to violate any mandatory laws regarding the disclosure of information.
- Any modifications of or deviations from these Conditions in relation to a specific contract agreed in writing between the Parties according to Clause 1, are deemed as Confidential Information of Appear and may not be disclosed to any third party other than to Purchaser’s accountants and/or attorneys without the prior written consent of Appear.
Marketing, Promotion and Press Releases
- From time-to-time, Appear lists and/or mentions its customers in its marketing and communication initiatives. Customer agrees that Appear may use Customer’s name and logo worldwide, free of charge. In addition, subject to applicable privacy laws, Customer expressly consents to Appear contacting the Customer for marketing or promotional purposes.
- Without limiting the foregoing, Customer agrees that Appear may distribute press releases about the cooperation between Customer and Appear as well as the commencement of any use of the Product and/or Service. Customer will promptly provide information to Appear, hereunder quotes, to assist Appear in making such press releases.
Disputes and Applicable Law
- The Parties shall seek to solve any dispute arising out of or in connection with the contract amicably, failing which the dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules.
- Any dispute arising out of or in connection with the contract shall be governed by and construed in accordance with the substantive law of Norway without application of that country`s conflict of law principles and excluding the U.N Convention on Contracts for the International Sale of Goods.
