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A guide to ICT contracts in Norway

Norway has a well-developed contractual and regulatory framework for ICT procurements and contracts are commonly based on a model agreements from one of the three “families” of model agreements in Norway. This article is intended as a brief guide for foreign companies that are involved in ICT procurements in Norway.

Norwegian law is generally based on freedom of contract, and contracts generally do not require any particular form to be valid, but. it is clearly most common to enter into written contracts in transactions between businesses. In contracts between professional parties, the freedom of contract is generally only limited to situations that are roughly equivalent to the common law concept of contractual frustration.

Norway is a part of the European Economic Area (“the EEA”), and EU’s law on public procurement has been incorporated into Norwegian law. Additionally, contracts that are below the EU thresholds, but which exceed a nationally defined threshold, are subject so certain requirements under Norwegian procurement legislation.

Norwegian model agreements

General

There are three main “families” of contracts available in Norway:

  • SSA –The Norwegian Government’s Standard Terms and Conditions for IT Procurement
  • PS – From the Norwegian Computer Society, Norway’s largest network for IT professionals
  • IKT-Norge – From ICT Norway, the interest group for the Norwegian ICT industry

The SSA contracts

The “SSA” family of contracts are authored and issued by The Norwegian Agency for Public and Financial Management. They are by far the most commonly used contracts for IT-related procurements in Norway, not only because the public sector is a large purchaser of IT-related services, but also because they are freely available and generally well-known. The agreements are tailored for public procurements, however they are also used in the private sector with or without modifications.

There are several different contracts available for different purposes, including cloud services projects (SSA-SKY), customization and development projects (SSA-T), maintenance services (SSA-V), outsourcing services (SSA-D), consultancy services (SSA-B) and standard hardware/software procurements (SSA-K).

The SSA family of contracts have been drafted by the Norwegian government for use by public entities, who mainly act as purchasers, and are generally deemed as customer friendly. Recently, there has been an increased involvement of the industry in the drafting and negotiation of these standard agreements, resulting in the contracts becoming more balanced.

Most of the SSA-family contracts are also available in English, but the quality of the translation varies.

The SSA- family contracts can be downloaded here.

The PS contracts

The “PS” family of contracts are authored and issued by the Norwegian Computer Society, for use by both private and public parties. The contracts are authored by representatives from both the customer and supplier side, with the addition of independent advisors (typically lawyers and consultants representing both sides). As such they are probably also the most balanced family of ICT model agreements in Norway.

There are several model agreements available to fulfill the purposes of various IT-projects, with multiple different versions for agile projects. There are also separate contracts available for software management (maintenance) and operational services (outsourcing).

The majority of the “PS” family contracts are available in English.

The PS family model agreements are subject to a license and license fee, and may be purchased from the Norwegian Computer Society website.

The IKT Norge contracts

The “IKT Norge” family of model agreements are authored and issued by ICT Norway, the interest group for the Norwegian ICT industry, primarily for use in the private sector and the SMB-segment.

Since the ICT Norway model agreements are generally deemed as supplier-friendly, and also are not freely available, their distribution and use has traditionally been limited. However recently ICT Norway has implemented a number of revisions which has resulted in more balanced contracts, likely resulting in an increase in their usage.

The model agreements cover the most common ICT procurements, such as purchase, development (agile and non-agile), consultancy services, standard software and hardware, outsourcing, maintenance and electronic communication services. Another feature of these model agreements is that they generally have a lighter (less voluminous) format than the model agreements from the other “families”.

The “IKT Norge” family m are subject to a license and license fee, and may be purchased from the ICT Norway website.

Use of other contracts

Bespoke agreements and standards

Bespoke agreements are not uncommon, especially outside of public procurement processes. Many suppliers and large customers also have their own standard contractual templates, that are sometimes also based on one of the model agreements or incorporates elements of them.

Where relevant, the model agreements are often used as benchmarks when negotiating bespoke agreements.

Use of foreign model agreements

In comparison to Anglo-American contracting traditions, Norwegian contract drafting has traditionally been less exhaustive in its approach, often relying on so-called “background law” to a significant extent instead of spelling out the contractual provisions in detail . However, during the last decade it has become increasingly common to use a format that is closer to the Anglo-American drafting traditions.

Whilst the use of party specific contract standards is fairly common, especially with larger suppliers and/or customers within the private sector, it is uncommon for Norwegian ICT contracts to be based on general contract templates originating outside of the Norwegian “families” as described above.

Use of contracts originally drafted for English law under Norwegian law is possible, and should generally not cause any problems in Norway if they are well-drafted at the outset. Certain clauses that are common in English law, such as “entire agreement” clauses and bankruptcy provisions, will however often need to be redrafted to comply with Norwegian law.

Parties are generally also free to elect the and dispute resolution mechanisms of a contract, and Norwegian courts will generally uphold such clauses. However, we do not recommend English law for proceedings in Norwegian courts; moreover Norwegian court proceedings will mainly be conducted only in the Norwegian language.

Foreign contracts should always be verified with Norwegian counsel to ensure that the contract is enforceable in accordance with its wording under Norwegian law.

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