Product And Subscription Terms

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).

1. “Agreement” means these Product and Subscription Terms together with the applicable Hardware Warranty Policy. 
2. "Authorised Users" means all users authorised to use the Solution, e.g., employees or contractors of Subscriber, solely for Subscriber's internal purposes, in accordance with this Agreement.
3. "Confidential Information" means any information (in whatever form communicated or maintained, whether orally, electronically or documentarily, 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.
4. "DAP-terms" means Delivered At Place as defined under the Incoterms ® 2020.
5. "Effective Date" means the date as set out in the Order and as defined in Clause 9.1. 
6. "Firmware" means Nofence's proprietary computer software programs installed on or embedded in the Hardware provided hereunder, in machine-readable form only.
7. "Hardware" means Nofence's solar-powered GPS-collar and associated hardware components, as set forth in the Order, purchased by Subscriber or that is owned by Subscriber. In each case, the hardware is configured by Nofence for use with the Software in connection with a Subscription. 
8. “Hardware Warranty Policy” means the applicable warranty policy in effect at the time the Subscriber purchased the Hardware. 
9. "Intellectual Property" means all current and future rights under applicable patent, copyright, trademark, design, marketing and database laws, 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.
10. "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. 
11. "Software" means all software products and solutions owned, developed and provided by Nofence to the Subscriber as part of this Agreement, such as the Nofence-App, as well as any modification thereof, whether developed by Nofence or a third party acting on Nofence's behalf.
12. "Subscription" means a subscription licence 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.
13. "Subscription Term" means the subscription term for Subscriber's access and use of the licence as described in Clause 6.1 and in Clause 9.1 and as outlined in the applicable Order. 
14. "Support" has the meaning given to such a term in Clause 7. 
15. "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 Authorised Users under this Agreement.
16. "Solution" means the Hardware, the Firmware and/or the Software specified in the applicable Order that Nofence provides to Subscriber under this Agreement.
17. "Usage Parameters" means the various parameters relevant for the Subscription, as specified in the applicable Order, i.e., the number of Authorised Users, the territory for which the Subscriber and its Authorised 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 Authorised Users. 
18. “User Manual” means the user instructions available on www.nofence.no. 
19. "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 behaviour, including, e.g., sensor data, location data, diagnostics, accelerometer data and GNSS data.
20. "Animals" means sheep, goat and cattle. The Nofence Solution is tailored for and can only be used on these.

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. 

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 any other documents.

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 Order accepted by Nofence or return any delivered Hardware. 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, no failure by Nofence to deliver as estimated shall be considered a breach of this Agreement. 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 instalments. 

The Subscriber is responsible for verifying that the content of the shipment is correct according to the Order and is obligated to notify Nofence of any error without undue delay and within 30 days of receipt at the latest. Should the Subscriber fail to collect the shipment within the due date, the shipment will be returned to Nofence. Additional cost related to re-shipping and handling will be invoiced to the Subscriber and must be paid before another delivery will be attempted. 

The Subscriber is responsible for installing and utilising the Hardware in accordance with Nofence's policies, recommendations and User Manual. The Subscriber understands that these may change over time and agrees to follow the policies valid at any given time. The Subscriber acknowledges and agrees that in order to use the Software, Authorised Users must have compatible mobile devices. Subscriber and its Authorised 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.

Subject to terms of this Agreement , Nofence hereby grants the Subscriber a limited, non-exclusive, non-transferable licence during the Subscription Term to (i) permit Authorised 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 (iii) use Solution in accordance with the Nofence’s Help centre and User Manual that can be found on www.nofence.no.

The Subscriber and its Authorised Users may not, directly or indirectly, permit or authorise third parties, to; (a) use the Solution (or any parts thereof, including but not limited to Solution Data) for any other purposes than those set out in Clause 6.1; (b) use the Solution beyond the scope of the licence 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 Authorised Users with access to or use of the Solution (or any parts thereof, except for the Hardware), without Nofence's prior written consent; (f) attempt to gain unauthorised 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; (g) "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; (h) use the Software to store or transmit infringing, libellous, or otherwise unlawful or tortious material; (i) use the Software in a manner that violates any local, national, foreign or international law, or to interfere with or disrupt the Software; and (j) violate any applicable laws or regulations, or the rights of any third party in connection with the use or access of the Solution.

The Subscriber and its Authorised Users shall  not 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 prior written consent and Nofence retains the right to refuse access to the Solution to any potential new owner of resold Hardware. Each new subscriber must be individually approved by Nofence and Nofence retains the right to refuse any new customer. The Subscriber understands and agrees that the Subscriptions are personal and cannot be transferred to the new owner along with any sold Hardware.

The Subscriber agrees that Nofence’s Solution and Hardware may only be used in the country of purchase unless otherwise agreed in an Order.

The Subscriber acknowledges and agrees  that Nofence retains all rights and the  sole and exclusive ownership of all the Solution Data, including any Intellectual Property Rights vested therein. As part of such rights,  Nofence may collect, aggregate, store, process, transmit, analyse 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 fulfil 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.

Subject to the Subscriber's payment of applicable fees, Nofence will through commercially reasonable efforts 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 business hours. The Parties may separately agree to any additional bespoke support services, but Nofence is not obligated to provide such  service. Should such an agreement be made, price and terms for such services  will be stated in the agreement. 

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) all data, including all 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 owned by  Nofence.

Notwithstanding the above, upon payment of the fees in the Order, the Subscriber has the title to the Hardware purchased hereunder, subject to Nofence's Intellectual Property Rights in any Firmware. 

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 Solution and the Intellectual Property Rights for the purpose of refining and/or further developing the Solution and said Intellectual Property Rights, free of any encumbrances and without affecting Nofence's rights therein or ownership thereof.

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 licence 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 licence term, unless either Party notifies the other Party in writing not less than three (3) months before the expiration of the then-current Subscription Term, that such Party does not wish to renew the Subscription.

In the event of a material breach of this Agreement by either Party, the non-breaching Party may, after having provided a 30-days notice to the Party in breach to cure the breach and the breach remains uncured, 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 termination notice; (v) fails to comply with the User Manual, including but not limited to use of the Hardware  on non-approved types of animals or using a specific collar type on animals it was not intended for; (vi) does not pay invoices when due.

Nofence may, in Nofence's sole discretion, terminate this Agreement for material breach should Nofence consider that the Solution is used in a manner contrary to the animals' best interest and the Subscriber’s negligent use of the Solution is causing harm to the animal.

Upon the expiration or termination of this Agreement for whatever reason, the licence 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 Clauses 8, 11, 12 and 14 of this Agreement shall survive any termination and/or expiration of this Agreement.

The Subscriber shall pay to Nofence the Hardware Fees stipulated in the Order.

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.

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 but not limited to, the permitted number of Authorised Users, or territories for use of the Solution) or other applicable limits, (ii) the Subscriber increases the Usage Parameters or subscribes to additional features or products or (iii) the Subscription Fees are modified in accordance with Clause 10.4.

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). Nofence retains the right to utilise third party debt collectors in the event that the  Subscriber  fails to pay within the agreed payment terms and limit and/or discontinue the license in Clause 6.1 and any services until payment has been received in full.

The Hardware Fees and the Subscription Fees (together referred to as "Fees") may be adjusted at the discretion of Nofence, including for any renewal term of the Subscription Term. 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.

The Parties, the Authorised Users and any third parties acting on their behalf are obligated to keep any Confidential Information confidential. 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 fulfil 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.

The confidentiality obligations in this Clause 11 shall apply during the term of this Agreement, and continue following the termination of the Agreement. 

The warranty provided to the Subscriber for the Hardware is exclusively regulated by our Nofence Hardware Warranty Policy as applicable at the time of the purchase, as provided in the Order. 

Any access granted to the Software, Firmware, Support or any other services, is provided on an "as is" and "as available" basis only without any warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Nofence makes no representations or warranties (i) regarding the usefulness or effectiveness of the Software, (ii) that the Software will be uninterrupted, error-free, or (iii) that it is completely secure, including that animals always will stay within the pre-defined grazing area when using the Hardware.

Subscriber understands and agrees that Subscriber is solely responsible for furnishing and procuring all utilities necessary for the operation of the Solution, at Subscriber’s sole cost and expense. Nofence shall not be liable for any costs, loss, injury or damage resulting from any interruption or failure of utilities due to any cause whatsoever, including, but not limited, to cost of feed, fencing, additional labour, lost hardware or faults in the product or services. 

Except for the Subscriber's payments obligations, the Parties' total aggregate liability arising out of or relating to this Agreement is limited to an amount equivalent to the Subscription Fees 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 Subscription Fees as set out in the price list by twelve (12). The aforementioned limitations shall not apply to direct or indirect losses caused by willful misconduct or gross negligence, or to Claims under Clause 13. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NOFENCE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR IN CONNECTION WITH THE SOLUTION, EVEN IF THE SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

NOFENCE DOES NOT PROVIDE ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR SERVICES THAT MAY BE USED IN CONNECTION WITH THE SOLUTION. THE SUBSCRIBER ACKNOWLEDGES AND AGREES THAT ANY USE OF THIRD-PARTY PRODUCTS OR SERVICES IS AT ITS OWN RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF THE THIRD-PARTY PROVIDER.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO THE SUBSCRIBER. IN SUCH JURISDICTIONS, THE LIABILITY OF NOFENCE SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY PROVISIONS CONTAINED IN THIS CLAUSE 12 SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT. 

The Subscriber agrees to defend, indemnify and hold Nofence harmless from and against any and all losses, liabilities, damages and expenses (including reasonable attorneys' fees) arising from or related to any claim, demand, threat, suit or proceeding (collectively, a “Claim”) regarding or related to (i) harm to animals, humans, property or other objects by reason of the Subscriber's or the Authorized Users’ use of the Solution; (ii) the Subscriber's breach of this Agreement or Order(s); (iii) animal welfare and applicable animal welfare laws and regulations in the Subscriber’s jurisdiction; and (iv) incidents where animals have moved outside of the grazing area; (v) breach of any applicable laws and regulations in the Subscriber's jurisdiction, including but not limited to fencing laws and regulations. 

Nofence agrees to indemnify, defend and hold the Subscriber harmless from and against any and all losses, liabilities, damages and expenses (including reasonable attorneys' fees) resulting from or arising out of any Claim that the use of the Solution in compliance with the User Manual and other documentation infringes the Intellectual Property Rights of a third party. If a Claim is brought or Nofence believes one may be brought, Nofence shall have the option at its expense to (1) modify the Solution as applicable to avoid the allegation of infringement or (2) obtain for the Subscriber at no cost to the Subscriber a license to continue to use the Solution in accordance with this Agreement free of any liability or restrictions or (3) terminate the Order. Nofence  shall have no responsibility for claims arising from (i) modifications of the Solution by the Subscriber or any third party; (ii) combination or use of the Solution with the Subscriber’s or third party hardware or software or any other third party product not supplied by Nofence, or any other unauthorized use, if such claim would not have arisen but for such combinations or use. The foregoing states the sole liability of Nofence and the exclusive remedy of the Subscriber in connection with infringement of Intellectual Property Rights.

Nofence may make 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, the Subscriber will receive notification of available updates and information about the installations.

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 this Clause 15, provided that the Subscriber shall pay the agreed Subscription Fees for the period prior to the termination date of the Agreement. The Parties may not present other claims against each other due to the termination of this Agreement pursuant to this Clause 16.

The applicable Nofence entity may freely assign its rights and obligations under this Agreement to any third party by providing prior written notice to the Subscriber. 

The Subscriber may not assign any of its rights and obligations under this Agreement to any third party without the applicable Nofence entity's prior written consent. 

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

Any notice or other communication required or permitted to be given under this Agreement must be in writing and is effective when delivered personally to the Party specified in the relevant Clause, or when received either: (i) via certified or registered mail, return receipt requested, postage prepaid; (ii) via express mail or reputable courier service by such Party at the address set forth in the Order; or (iii) to Nofence 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 16.3.

If any term, condition or provision of this Agreement is found by a 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.

This Agreement, together with the applicable Order(s) and the Nofence Hardware Warranty Policy, 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.

The Subscriber shall be responsible for paying any and all taxes (together with all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority regarding the Solution, the Support or other service provided to Subscriber, including but not limited to all applicable customs,  VAT and sales tax.

This Agreement and the Parties' rights and obligations hereunder shall be governed by Norwegian law and the law regulating sales from one business to another (Kjøpsloven). 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).

The Subscriber acknowledges and agrees that the Solution, the Support, and any related technical information, documents, and materials may be subject to export controls under local export control laws at the Subscriber's defined delivery site in the Order. The Subscriber shall (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with Nofence in any official or unofficial audit or inspection that relates to these controls; and (iii) not export, re-export, divert, transfer, or disclose, directly or indirectly, any Solution or related technical information, document, or material to any country restricted by applicable local export control laws.  The Subscriber shall defend, indemnify, and hold Nofence harmless from and against any and all liabilities, costs, losses, damages, and expenses (including reasonable attorney's fees) arising from or related to any violation of export control laws by the Subscriber.