1. Introduction
In these Terms and Conditions, Nera Networks AS or any of its Affiliates is referred to as "NERA", and the "Purchaser" means the party or parties contracting to purchase Products and/or services from NERA. "Products" and "Services" includes all Hardware, Software, Firmware Documentation, Spare Parts, and services of whatever type, which NERA has agreed to supply either directly or through its authorised agent(s).
2. General
No terms or conditions (whether contained in the Purchasers Official Purchase Order or otherwise) shall be binding on NERA other than those set out herein, unless expressly agreed otherwise by NERA in writing.
3. Formation of the Contract
The Contract between NERA and the Purchaser shall be deemed to have been entered into when, upon receipt of a Purchase Order (hereinafter referred to as “PO”), NERA has sent an acceptance in writing within the time limit (if any) fixed by the Purchaser, or when the Contract is signed by both parties hereto. The PO must be specific on the product specification, volumes and requested delivery date. Order Changes must be kept to a minimum. However, should a Change Order be submitted, a new delivery date may be stated, and charges may be applied. Cancellation of special orders will be on special terms.
If NERA has fixed a time-limit for acceptance, the Contract shall be deemed to have been entered into when the Purchaser has sent an acceptance in writing before the expiration of such time-limit. The Contract will come into force when all related requirements in the Contract are met.
4. Quotations
Quotations are valid for a period of 30 days from the date of issue unless expressly agreed otherwise by NERA in writing.
5. Prices
Unless otherwise confirmed in writing by NERA, prices quoted are Ex Works - Bergen Norway/or other factories/logistical service points for NERA (in accordance with INCOTERMS 2000). Carriage, insurance and other costs (if any) will be charged as extra. Prices quoted apply only to the quantities or particular services specified in the quotation.
If between the date of the PO confirmation and delivery, the cost of the whole or any part of the Product or services is increased by reason of any rates, duties or taxes payable by NERA, NERA may increase the price accordingly.
6. Terms of Payment and Default Interest
6.1. Terms of Payment
Payment is to be made in full based on “30 days net” of invoice date in the currency invoiced. Should the Purchaser fail to pay in full within that period NERA shall be entitled to suspend work and/or delivery of any goods to the Purchaser. Such action shall not prejudice any other remedy that NERA may have, hereunder terminate the Contract with 14 days written notice.
6.2 Interest
In the event that payment is not made within 30 days of invoice date, the Purchaser shall pay NERA interest at the rate of 3 months LIBOR plus 5% per annum, until all outstanding amounts, including interest charges, are paid.
7. Delivery
7.1. Unless otherwise agreed, any quoted delivery or period shall refer to delivery Ex Works.
7.2. Unless otherwise agreed, the delivery period shall run from the date of formation of the Contract as defined in Article 3.
Should delay in delivery be caused by any of the circumstances mentioned in Article 11 or by an act or omission of the Purchaser such as delay in payment, delay of any of Purchaser’s undertakings according to this Contract, causing NERA a delay, and whether such cause occurs before or after the time or extended time for delivery, NERA shall be entitled to an extension of the delivery period as is reasonable having regard to all the circumstances of the case, but such extension shall not exceed the delay attributable to the Purchaser or to force majeure.
7.3. NERA is responsible for delivery fulfilment in accordance with delivery dates agreed in the confirmed Purchase Order. In the event a delay is likely to occur, Nera undertakes to notify the Purchaser of the possibility of such delay and do its best effort to avoid or minimize such delay. Nera shall however, not be liable for penalties or damages the Purchaser may incur as a consequence of a delay.
In case the delay in NERA’s performance of his Contractual obligations under this Contract is caused solely by the failure or delay in the Purchaser’s performance of his obligations and such failure or delay leads to increased costs on the part of NERA (in the completion of such Contractual obligations), NERA shall be entitled to full reimbursement by the Purchaser for such increased costs.
7.4. If the Purchaser fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the Product and/or Services have been delivered. NERA shall arrange for the storage of the Product at the risk and cost of the Purchaser.
7.5. Unless the failure of the Purchaser is due to any of the circumstances mentioned in Article 11, NERA may require the Purchaser by notice in writing to accept delivery within a reasonable time.
8. Cancellation
No cancellation, suspension or variation by Purchaser of an Order shall be valid unless agreed by NERA in writing. Such agreement shall be entirely at NERA's discretion and will only be given on terms, which compensate NERA for any documented direct costs.
9. Title and Risk
9.1. Unless otherwise agreed, the Product and/or Services shall be deemed to be sold "Ex Works"(Incoterms) and the risk shall pass accordingly.
9.2. NERA must give notice in writing to the Purchaser of the date on which the Purchaser must take delivery of the Product. The notice of NERA must be given in sufficient time to allow the Purchaser to take such measures as are normally necessary for the purpose of taking delivery.
9.3. Title to the Product supplied shall pass to the Purchaser when Nera has received full payment for the said Product.
10. Intellectual and Industrial Property rights. Patent Indemnity.
10.1. The Products made available to the Purchaser by NERA are subject to copyright, trademark and other rights of intellectual and/or industrial property and are protected by Norwegian and international laws. All such rights and intellectual property remain the property of NERA and consequently, absent a prior explicit consent by NERA, the
Purchaser may not copy, reproduce or adapt, by himself or by means of a third party, publish, distribute, lend and/or transmit through any form the copyright materials and, in general, must restrain from performing any such activities that may constitute a violation of the intellectual and industrial property rights vested in NERA.
10.2. The Software shall only be used for the operation of the Hardware and solely in accordance with the purposes and instructions stated in the documentation (manual, descriptions, diagrams, etc.) supplied with the Product. Any other use of the Software shall be deemed improper and will constitute a violation of NERA’s intellectual property rights.
10.3. In case of infringement of NERA’s intellectual and/or industrial property rights by the Purchaser, the Purchaser shall compensate NERA for all documented loss sustained as a consequence of the infringement.
10.4. NERA will defend at its expense, any action brought against Purchaser to the extent that it is based on a claim that the use of NERA’s Product infringes any patent or copyright, and NERA will indemnify the Purchaser from any cost, damages and fees finally awarded against the Purchaser in such action which is attributable to such claim. The Purchaser undertakes to notify NERA promptly in writing of any claim. NERA shall not be liable for any costs, damages or fee incurred by the Purchaser on such action or claim unless authorised in writing by NERA.
NERA shall have no liability for any claim based upon; (i) the combination, being operation or use with any NERA Product not supplied or specified by NERA, (ii) the alteration or modification of any NERA Product if such alteration or modification was not made by NERA, or (iii) the failure by the Purchaser or its end-users to use the most current version of the Product.
This Article 10 states the entire liability of NERA with respect to infringement of any intellectual property rights buy NERA’s Product and NERA shall have no additional liability with respect to any alleged or proven infringement.
11. Force Majeure
Without prejudice to any other provision of this Agreement NERA shall not be liable for any delay in or failure to perform any of its obligations hereunder if the delay or failure is due to causes beyond NERA's control, such as but not limited to: Acts of God, riots, wars, accidents, embargo or requisitions (acts of government), labour disputes or strikes, fire, flood, epidemic or quarantine restrictions, war, riot, rebellion, insurrection or civil unrest or any other circumstance outside the control of NERA. In case of Force Majeure NERA shall promptly inform the Purchaser in writing and furnish all relevant documentation thereto.
12. Warranty
Separate "Certificate of Warranty" and “Software Rectification Terms” in respect of Products as set out in Appendix 1.
13. Limitation of Liability
13.1. Any liability of NERA to third parties for personal injury or death caused by the Product and/or Services or by any employee(s) of NERA or its subcontractor(s) shall be determined by applicable law.
13.2. Any liability of the Purchaser to NERA for damage to property or personal injury or death caused by the Purchaser by improper use of the Product or by acts of his employees shall be determined by applicable law.
13.3. The party in breach of the Contract shall take all necessary measures to mitigate the loss provided that he can do so without unreasonable inconvenience or cost. Should he fail to do so, the party in breach may claim a reduction in the damage.
13.4. In the absence of gross negligence, Nera’s aggregate liability under this Contract and/or any Purchase Order shall not exceed 25% of the Contract or Purchase order value. For the avoidance of doubt, Nera shall not under any circumstances be liable for consequential damages, such as but not limited to loss of profit, loss of revenue and loss of interest.
14. Exclusions
Except as expressly stated above and to the extent NERA has not exercised gross negligence or wilful misconduct, all other warranty conditions promises or representations of any nature are hereby excluded.
15. Changes
No changes to the Contract hereunder will be valid unless verified in writing between both parties. Changes shall be introduced through change Orders duly signed by authorised representatives of the Parties.
16. Governing Law
These General Conditions of Sales are governed by Norwegian Law. Legal venue shall be Bergen District Court.
APPENDIX 1
A. Certificate of Warranty
1. Nera warrants that all Product Hardware delivered under this Contract in all respects are in accordance with the Specifications set out in this Contract, and are free from Defects (material and workmanship).
2. Nera warrants that the Hardware will be free from Defects in materials and workmanship for a period of 18 months from the delivery, or 12 months from installation of the Product, whichever comes first, provided that the Product is stored, operated and maintained under normal conditions according to the Documentation, Specifications, information and Training (if any) furnished by Nera under this Contract. For Software Products (other than embedded as a part of the Product Hardware) the Warranty period is 3 months from installing the Software. The Software shall be deemed to have been installed no later than 1 month from the date of delivery. Absence of errors in Software is not warranted.
3. If a defect should occur, Nera shall rectify such Defect in the Product so that its performance is restored according to the agreed Specifications. Purchaser must without undue delay give Nera notice of such Defects, non-conformities or deviations from the Specifications before the expiration of the applicable warranty period. Defective part of the Product shall be returned to Nera Authorised Repair Centre at the Purchaser’s cost. Nera undertakes to conduct failure analysis and remedy the defective Product and return the remedied part to the Purchaser at Nera’s cost within 30 working days from receiving such defective Product part. The remedy may take the form of rectification, re-delivery or additional delivery as sole remedy. Rectification of errors and malfunctions that may occur in software that is delivered to the Purchaser is undertaken under the terms and conditions applicable to the rectification of software, article 9 below.
4. Purchaser’s exclusive remedy under this warranty or any implied warranty shall be limited to the repair or replacement, at Nera’s option, of any defective part of the product or accessories, which are covered by this warranty. Repairs under this warranty shall only be made at an Authorised Supplier Repair Centre.
5. To obtain warranty service, the Purchaser must return the product or accessories post-paid, with proof of the date of original purchase, nature of defect, and purchaser’s return address to the nearest Supplier Authorised Repair Centres. Nera will not be responsible for losses or damage to the product incurred while the product is in transit or is being shipped for repair. Insurance is recommended.
6. Except as set forth in 2 above or by mandatory law, all other expressed or implied warranties, including those of fitness for any particular purpose and merchantability, are hereby disclaimed and excluded.
7. This warranty does not cover the following:
- If the warranty seal is broken.
- Any damage due to shipping, misuse, negligence, and tampering or improper use on the part of the Purchaser, his employees or any other person identified with or acting under the responsibility of the Purchaser.
- Servicing performed or attempted by anyone other than an Authorized Supplier Repair Centre representative.
- Opening of the Product by anyone other than an Authorized Supplier Repair Centre representative will void this warranty.
- Defects caused by modification of the Product without NERA’s written approval or by inter-working Product not supplied by Nera.
8. This written warranty is the complete, final, and exclusive remedy with respect to the quality of performance of all the goods and any and all warranties and representations. This warranty sets forth all of NERA’s responsibilities regarding the Product/Product hardware.
9. Nera assures no liability for any criminal/civil penalties resulting from illegal use of NERA’s Products under this Contract.
B. Software Rectification Terms
1. Nera undertakes to remedy errors and malfunctions discovered in Nera Software during the Warranty Period in accordance with Articles 2 and 3 hereunder. In the absence any other date having been agreed upon in the Contract (i.e. (provisional) acceptance date) and documented in respect of loading Nera Software on the Purchaser’s Nera Products, Nera Software shall be deemed to have been loaded on the date of delivery.
2. The Purchaser shall notify Nera of a defect discovered in Nera Software by facsimile or e-mail promptly upon its occurrence but in any event not later than ten (10) days after it has been discovered. The Purchaser shall use Nera s fault report forms, or if the Purchaser does not have these available, provide the following information in each notice: (a) identification of Nera Software (type , serial number, date of delivery and commissioning) and its location; (b) description of the defect , including the environment, history of events prior to the defect having occurred, etc. (c) identification, if any, of the source of the defect; and (d) identification of the subassembly, if applicable.
3. The Purchaser shall promptly provide any additional information concerning the defect and its occurrence that Nera may reasonably request.
4. Nera undertakes upon request to promptly provide to the Purchaser telephone assistance for the identification and analysis of any reproducible problem in Nera Software.
5. In case of performance-affecting errors or malfunctions in Nera Software (which includes problems affecting traffic or substantially affecting the operation and control of Nera products) Nera shall promptly upon receipt of notice from the Purchaser take corrective action to restore satisfactory product performance. Such corrective action may initially include temporary patch changes followed by further modification of Nera Software so as to achieve removal of such material errors or malfunctions. Other (minor) software problems in Nera Software shall from time to time be rectified in successive updates made available by Nera subject to the terms and conditions of a separate care agreement.
6. Nera undertakes to promptly forward to the Purchaser the rectification. The installation of the repaired or replacement part, subassembly or unit shall be performed by the Purchaser.
7. The obligations of Nera set forth in these Software Rectification Terms are valid on condition that (i) the Purchaser has acted fully in conformity with these Software Rectification Terms; (ii) Nera Products and Nera Software have been transported, stored , installed and operated fully in accordance with the instructions and specifications of Nera; (iii) Nera Products and Nera Software have not been modified or repaired by any unauthorized party or using any unauthorized parts subassemblies or materials without the prior written consent of Nera; and (iv) Nera Software has not been used with any freely available software not supplied by Nera.
For further information concerning this warranty, please call or write to:
Nera Networks AS
Attn: Legal Department
P.O. Box 7090
N-5020 Bergen
Norway
Telephone: + 47 55 22 51 00
Telefax: + 47 55 22 52 99
E-mail: legal@neraworld.com