1. Work Execution
1.1 DNV shall execute the work as described in the Scope of Work section in the Cover Letter in accordance with the provisions of this Agreement, and any agreed applicable rules and standards (the “Work”). The extent of the Work to be performed shall be set out exclusively in the Scope of Work section of the Cover Letter, which in case of ambiguity or incompleteness shall be determined by reference to any proposal or bid made by DNV to the Customer.
1.2 DNV will provide suitably qualified personnel to carry out the Work. Unless otherwise agreed, DNV may at any time substitute personnel assigned to the Work, provided that any replacement personnel are suitable. Customer may set forth any reasonable and reasoned objection against any of DNV’s personnel assigned to the Work by written notice. Without undue delay after DNV’s receipt of such notice, the parties shall meet and discuss the objections and any measures or reassignment, pending which DNV may without any liability or penalties suspend any performance of the Work otherwise to be carried out by the relevant personnel.
2. General Obligations
2.1 The parties agree that the proper and timely performance of the Work under this Agreement relies on the parties’ effective communication and exchange of relevant information. To this purpose the parties agree to use their reasonable efforts to cooperate in all necessary ways and to develop and maintain open communication and common understanding of the Scope of Work under the Agreement.
2.2 Customer agrees that DNV’s performance of the Work requires DNV to be granted access and right to inspect all relevant sites and facilities and provision of all relevant, correct and complete documents and information. For this purpose, Customer shall in a timely manner make all necessary arrangements and provide DNV with all reasonably necessary access to the above mentioned information and sites. Customer shall be responsible for the correctness of the information it provides and DNV is entitled to rely on the accuracy and completeness of such information for the performance of the Work.
2.3 Customer shall promptly inform DNV of any actual or likely delay in necessary access to relevant sites or facilities, or delay in providing or changes to the information necessary for DNV’s performance of the Work. Should Customer fail to provide DNV with the required timely access or necessary information, DNV may inform Customer of the lack of access or insufficient information and may without any liability or penalties suspend the performance of the Work pending receipt of the Customer’s instructions for access and/or necessary information.
3. Heatlh, Safety and Environment
3.1 Both parties shall employ reasonable standards for promoting health, safety and environmental protection and for ensuring safe working environments for their personnel.
3.2 Customer shall inform DNV without undue delay of: (i) any actual or potential HSE risk which Customer is aware of and which is reasonably relevant to the performance of the Work; and (ii) any of Customer’s implemented or planned measures against such risks that Customer requires DNV’s personnel to adhere to.
3.3 Whenever DNV’s performance of the Work involves visits to or work on Customer controlled facilities or sites, Customer is responsible for the adequacy, stability, safety and legal compliance of the working environment, including reasonable measures to mitigate or control relevant risks. Whenever DNV’s personnel are present on Customer’s facilities or sites, DNV’s personnel shall adhere to Customer’s HSE instructions provided according to this HSE clause. DNV or its personnel may refuse to carry out any activity, or visit any area or site, if DNV or its personnel in their sole discretion consider that relevant risks are unacceptable or not adequately addressed, contained or otherwise mitigated. Any such decision shall suspend both parties’ obligations under this Agreement without any liability or penalties until the parties have agreed on how to proceed.
4. Variations
4.1 Customer may in writing request DNV to perform additional reasonably similar work under this Agreement (a “Variation”).
4.2 Should the Customer request a Variation, or if DNV deems any instruction by the Customer to constitute a Variation, DNV shall set out an overview of the Variation, including the impact on the time schedule and remuneration for such in the form of a Variation order (a “Variation Order”), and shall issue the Variation Order to Customer. Unless the Customer objects to the Variation Order within five (5) business days, the Variation Order shall be deemed as accepted as an integral part of this Agreement. Should the Customer object to the Variation Order, the parties shall discuss the impact of the Variation on the time schedule and remuneration and agree an amended Variation Order.
5. Taxes & Remuneration
5.1 Each party is solely responsible for paying any and all taxes to any public authority wherever such taxes are levied on the activities of such party. For the purpose of this Agreement, any and all prices, fees, rates or remuneration are agreed as stated exclusive of any form of sales taxes, value added tax, and/or any other similar taxes which may be applicable.
5.2 Customer shall effect payment as agreed in the Cover Letter to DNV for the Work, including any Variations, to DNV’s bank account stated on the invoice within thirty (30) days of the date of the invoice.
5.3 In case of late payments, DNV is entitled to charge a late payment penalty interests according to the applicable law of this Agreement, or 3% above the thirty (30) days LIBOR rate, whichever is the lower.
5.4 All payments shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law.
5.5 If and to the extent Customer has to withhold taxes or other payments according to applicable laws, Customer shall deduct and withhold such amounts from payments to DNV and pay the amount to the competent tax authority or any other relevant governmental body. Customer shall inform DNV about such withholding prior to making the payment and shall use reasonable efforts to cooperate with DNV in seeking double tax treaty relief and/or other exemptions and reliefs available, hereunder seeking exemptions from any general withholding obligations Customer may have. Customer shall provide DNV with a withholding certificate or tax receipt issued in the name of DNV in accordance with applicable laws.
5.6 For long term engagements of 12 months duration or more, rates shall be revised periodically every 1st of January.
6. Confidentiality
6.1 Each party (“recipient”) agrees to keep confidential any information it receives from the other party (“disclosing party”) in the course of the Agreement which, by denotation or reasonable circumstances, is considered confidential to the disclosing party. The recipient shall treat such received information with reasonable care and diligence, not disseminating or disclosing it to third parties without the disclosing party’s prior written consent, provided however that each party may share such information with its officers, employees, affiliates, subsidiaries or subcontractors who are subject to confidentiality obligations reflecting the principles herein.
6.2 Notwithstanding anything to the contrary in this Agreement, and subject to the exceptions in the clause below, all Training Materials shall be deemed to constitute confidential information. Training Material shall not be shared by Customer with its affiliates, subsidiaries, or subcontractors, unless same are included as a Participant (as defined in clause 15.1).
6.3 The obligations set forth in clause 6.1 shall not apply to (a) DNV’s reference to the Customer under this Agreement in any efforts to secure other business, unless the Customer expressly and in writing forbids such reference, or (b) to any information which: (i) was or becomes known to the recipient from a third party without any confidentiality obligation; (ii) is or becomes generally available in the public domain through no act or failure to act on the part of the recipient; (iii) is required to be disclosed by any competent court, governmental agency, flag state administration, or other relevant public authority in accordance with applicable law, court order or other public regulation; or (iv) has demonstrably been developed by the recipient independently from this Agreement.
6.4 Notwithstanding the above, unless otherwise explicitly agreed, DNV shall have the rights to use any information generated in the course of the Work which contains or otherwise reflects the information of the Customer for its own statistical or analytical purposes. Such information may only be disclosed to third parties in aggregated anonymous forms.
6.5 The obligations in this section shall survive the completion of the Work or termination of this Agreement and remain for as long as the relevant information is confidential.
7. Termination
7.1 This Agreement shall come into effect on the date of the later signature on the Cover Letter and shall remain in full force and effect until all Deliverables are delivered, or the Work is otherwise completed and paid for in full, unless earlier terminated in accordance with clause 7.2 or 7.6.
7.2 Each party may terminate this Agreement by written notice to the other party under the following circumstances: (i) if the other party commits a material breach of this Agreement and fails to rectify such within ten (10) working days after receipt of the other party’s written notice; (ii) immediately if the other party becomes insolvent, is unable to pay its debts as they fall due, or is subject to bankruptcy proceedings, receivership, dissolution, liquidation, winding-up or otherwise discontinues business; or (iii) for convenience at any time upon thirty (30) days written notice to the other party.
7.3 In the event of termination according to Clause 7.2 (iii) above, Customer shall reimburse DNV for all Work performed up to the date of termination, and all costs and expenses reasonably incurred by DNV as a consequence of such termination.
7.4 Notwithstanding Clause 7.3, the following cancellation/ termination fees shall apply when a confirmed training event is cancelled, terminated, or suspended by Customer (“Termination Event”).
a. If notice of the Termination Event is given 15-30 days before the training event: 50% of the agreed fee plus 100% of any unrecoverable expenses incurred by DNV in respect of the training event.
b. If notice of the Termination Event is given 14 days or less before the training event: 100% of the agreed fee plus 100% of any unrecoverable expenses incurred by DNV in respect of the event.
7.5 Participants not making use of the complete Work do not have a right to refund of any fees from DNV.
7.6 DNV shall have the right to terminate the Agreement if the requested documents or information, according to article 1.2 above, has not been provided in time.
8. Intellectual Property Rights
8.1 DNV shall have full ownership rights, including copyright, to the Training, E-Learning and Training Material (if the Training Material is created by DNV) as well as any other deliverables created or provided by DNV as part of the Work.
8.2 Subject to the Confidentiality article, Participant shall have a restricted license to use the Training Material for Customer’s internal purposes only. Unless otherwise stated herein, the License to use the Training Material includes a restricted right (non-transferable and non-sublicensable) to use the Training Material only for Customer’s Training or E-learning purposes under and pursuant to this Agreement. The Training Material constitutes DNV’s copyrighted material or copyrighted materials licensed to be used by DNV, and shall be treated confidentially regardless of the expiration/termination of this Agreement. The license does not include a right to copy, edit, translate or make the Training Material available to others within or outside Customer’s organization for a period of 12 months after the training has taken place. Upon completion of this time period Customer shall ensure that all copies of the Training Material are deleted.
8.3 Notwithstanding the above, both parties agree that any intellectual property right (either registered or not) in existence prior to this Agreement shall remain the sole property of the originating party.
9. Force Majeure and Restrictions on Trade
9.1 Neither party shall be in breach of this Agreement, nor liable for any failure or delay in performance hereunder if the cause of such failure or delay is attributable to events beyond the reasonable control of the affected party, including but not limited to armed conflict, terrorist attack, civil war, riots, toxic hazards, epidemics, natural disasters, extreme weather, fire, explosion, failure of utility service, labour disputes, breakdown of infrastructure, sanctions, or any public restrictions following any of the incidents above, or any other force majeure occurrence.
9.2 In the event of a force majeure occurrence, the affected party shall notify the other party without undue delay of the particulars of the situation. Either party shall be entitled to terminate the Agreement with immediate effect should the force majeure occurrence endure for more than thirty (30) days.
9.3 Both parties may terminate this Agreement with immediate effect, without any liability or penalties, if the party, its ultimate parent company or its ultimate parent company’s subsidiaries or affiliates are or become subject to sanctions or penalties imposed by a national government, the United Nations, the European Union or similar organisations related to the Work which is provided hereunder, or if the Work would be considered to be illegal or in conflict with applicable law for the respective party, its subcontractors and/or its subcontractor’s’ parent companies.
10. Liability and Indemnity
10.1 EACH PARTY (“INDEMNIFYING PARTY”) SHALL INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AND THE OTHER PARTY’S AFFILIATES AND SUBCONTRACTORS, AND ITS AND THEIR EMPLOYEES AND OTHER REPRESENTATIVES (COLLECTIVELY, “THE INDEMNIFIED PARTY”), FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES (COLLECTIVELY, “CLAIMS”) ARISING OUT OF OR RELATED TO THIS AGREEMENT IN RESPECT OF: (I) BODILY INJURY, SICKNESS, DISEASE, OR DEATH OF ANY OF THE INDEMNIFYING PARTY’S OR ITS AFFILIATES’ OR SUBCONTRACTORS’ EMPLOYEES OR OTHER REPRESENTATIVES; AND (II) LOSS OF OR DAMAGE TO THE INDEMNIFYING PARTY’S, ITS AFFILIATES’, SUBCONTRACTORS’, OR ANY OF THEIR RESPECTIVE EMPLOYEES’ OR REPRESENTATITVES’ PROPERTY OR EQUIPMENT.
10.2 CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS DNV FROM AND AGAINST ALL (I) CLAIMS ARISING OUT OF OR RELATED TO CUSTOMER’S BREACH OF SECTION 2 (GENERAL OBLIGATIONS); AND (II) CLAIMS AGAINST DNV RELATING TO THIS AGREEMENT WHICH ARE OUTSIDE OR EXCEEDING THE LIMITATIONS IN ARTICLE 11.
10.3 The indemnities set out above shall apply howsoever any relevant claims, damages, losses or expenses may arise and regardless whether under contract, tort (including negligence) strict liability or otherwise, except if and to the extent caused by the indemnified party’s: (i) intentional and wrongful act or omission with the intent to inflict damage or injury; (ii) act or omission in reckless disregard of or conscious indifference to a known or obvious risk which makes it highly probable that harm would follow; and (iii) any circumstances for which a party may not lawfully limit its liability under this Agreement’s applicable law.
10.4 Each party shall notify the other party without undue delay upon becoming aware of any incident likely to give rise to a claim against the other party in relation to this Agreement.
11. Limitation of Liability
11.1 Each party shall be responsible for its own acts or omissions leading to the loss of or damage to a third party. Neither party excludes any liability arising from its own fraud or fraudulent misrepresentation.
11.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LIQUIDATED, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE OF ANY TYPE, INCLUDING BUT NOT LIMITED TO INTERRUPTION OR LOSS OF BUSINESS, CONTRACT OR REVENUE, LOSS OF GOODWILL, LOSS OF PROFIT, WASTED OVERHEAD, COST OF SUBSTITUTE EQUIPMENT, OR DOWNTIME COSTS, HOWSOEVER SUCH MAY ARISE.
11.3 EXCEPT FOR THE OBLIGATIONS UNDER SECTIONS 6.1 AND 11.1 OR IN CASE OF FRAUD OR FRAUDULENT MISREPRESENTATION, DNV’S MAXIMUM CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (A) A SUM EQUAL TO TEN (10) TIMES THE REMUNERATION PAID TO DNV UNDER THIS AGREEMENT, OR (B) THREE HUNDRED THOUSAND US DOLLARS (USD $300,000).
12. Insurance
12.1 Both parties shall maintain adequate insurance coverage for general and professional liabilities and their relevant personnel under the Agreement, in such amounts and on such terms as are reasonably standard in their respective industries and with underwriters who are in good standing.
13. Fair Business Practice, Anti-Bribery and Compliance
13.1 The parties shall conduct their respective business activities in a fair, ethical, and lawful manner in accordance with generally accepted codes of conduct (including but not limited to the DNV code of conduct), avoiding any unacceptable activities, including but not limited to acceptance of or acquiescence in extortion, bribery, use of child labour, breach of human rights, or the imposition of unreasonable work conditions.
13.2 EACH PARTY SHALL INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY FOR CLAIMS ARISING FROM THE INDEMNIFYING PARTY’S BREACH OF THIS CLAUSE.
14. Law and Jurisdiction
14.1 This Agreement shall be exclusively governed and construed in accordance with the laws of Norway, without regard to principles of conflicts of law.
14.2 The parties shall use their reasonable efforts to resolve any claim or dispute arising out of or in relation to this Agreement (“Dispute”) by negotiations within a reasonable time. Should the parties fail to resolve any Dispute by negotiations, the Dispute shall be brought exclusively before Oslo Tingrett.
15. Additional Special Conditions
15.1 Execution of the Work:
a. The Customer shall ensure that DNV without undue delay receives a list of individuals who will participate in the Training, E-Learning, or other Work provided by DNV (“Participants”).
b. Customer shall ensure that all Participants in the training shall comply with the reasonable instructions of the DNV trainer in connection with the provision of the Services. No recording and/or videotaping of Training or E-learning is allowed.
c. DNV does not warrant any specific result nor undertake any fit for purpose obligations (which are expressly disclaimed) in connection with the content of the Work or the Deliverables and/or any subsequent use of all or parts of the content of the Work or the Deliverables.
d. The Customer shall ensure that all user names and passwords provided by DNV for the access to the E-learning or Training Material shall only be disclosed to the Participant and shall be kept confidential by the Participant to whom such user name and/or password is provided (and the same will not be disclosed to third parties, other employees or representatives of the Customer without DNV’s prior consent). The Customer and any Participant shall immediately notify DNV if it becomes aware of the loss, theft or disclosure to any third party or any unauthorized use of a user name and/or password.
15.2 License to use E-Learning Tool
a. Unless otherwise agreed, the E-learning tool consists of an online training that may be digitally accessed by the Participants, logging in using unique user name and password.
b. The license to use the E-learning tool consists of a restricted right to access and use the tool online for a period of 30 days for the purpose of a Participant’s following of the E-learning. The license does not include a right to download or otherwise copy, or to redistribute, the E-learning. Unless otherwise agreed in writing in the Cover Letter, the number of individual E-learning Participants per Customer is 1 (one).