1.1 The General Terms and Conditions (the “Conditions”) set forth herein shall apply exclusively to all sales and deliveries of products (the “Product”) from Glamox AS and any of its subsidiaries (the “Supplier”) to its customers (the “Purchaser”).
1.2 Terms and conditions provided by the Purchaser that is in conflict with these Conditions, or amendments to these Conditions, shall not apply unless the Supplier, in each individual case, has provided its prior written approval thereto. For the avoidance of doubt; these Conditions shall apply exclusively even if the Supplier performs delivery to the Purchaser without reservations, notwithstanding the Supplier’s knowledge of conflicting terms and conditions of the Purchaser.
1.3 In case of an ongoing business relationship, the current version of the Conditions forms part of the agreement with the Purchaser regardless of the lack of a specific reference to the Conditions.
2. ORDERS AND ORDER CONFIRMATIONS
2.1 The Purchaser’s order for the Products may either be in writing or made by telephone. The Supplier shall without undue delay confirm the order by a written order confirmation for products that are part of the Supplier’s list of current products. Orders for products that will require modifications or any other changes to its current specifications will be confirmed according to the estimated time required to fulfil the Purchaser’s request.
2.2 Should the order confirmation not be in compliance with the Purchaser’s order, the Purchaser must notify the Supplier in writing within 3 days of receipt of the order confirmation. If the Purchaser fails to provide such notification of non-compliance, the Purchaser loses the right to invoke the non-compliance. In the event the Purchaser notifies the Supplier of such non-compliance, the Supplier shall, without undue delay send the Purchaser a new and correct order confirmation.
3.1 Supplier shall deliver the Products at the agreed delivery date to the Purchaser. The Supplier’s compliance with the delivery date is conditional upon the Purchaser’s fulfilment of his own contractual obligations, including but not limited to the Supplier’s punctual receipt from the Purchaser of specifications, documentation, permissions and advance payments (if applicable). If the Purchaser fails such fulfilment then the delivery date shall be extended accordingly.
3.2 All deliveries by the Supplier to the Purchaser shall be EX WORKS at the Supplier’s warehouse (designated in the order confirmation) whereby delivery shall be deemed made at the date when the Supplier has notified the Purchaser that the Products are ready for delivery and have been placed at the disposal of the Purchaser.
3.3 The risk for the Products shall pass to the Purchaser at the time of delivery, even if the Supplier agrees to perform additional services, such as arranging of transportation of the Products.
3.4 If the parties have agreed that the Supplier shall arrange for transportation of the Products, at the Purchaser’s risk and expense, the Supplier will utilise his regular transportation providers including insurance of the Products unless notified otherwise.
3.5 If the Purchaser anticipates that he will be unable to take delivery of the Products at the agreed date of delivery, he shall forthwith notify the Supplier in writing thereof, stating the reasons and, if possible, the time when he will be able to take delivery. If the Purchaser fails to take delivery, he shall nevertheless pay any part of the purchase price, which becomes due on delivery, as if delivery had taken place.
3.6 In the event that the Purchaser does not collect the Products at the agreed date of delivery, the Supplier shall arrange for storage of the Products at the risk and expense of the Purchaser. The Purchaser shall be liable for any costs arising from such delay, including the Supplier’s costs relating to storage, insurance and handling of the Products. If not otherwise agreed the costs for storage shall be 0.5 % of full invoice value of the purchase order, per commenced month. The Supplier shall be entitled to resell the Products ordered by the Purchaser in the event that the Purchaser does not collect the Products within four weeks of the delivery date. The Supplier shall, however, provide the Purchaser with 14 days advance notification of its decision to resell the Products.
3.7 Should the Supplier be in a situation where he is not able to fulfil delivery of all Products in an order, the Supplier shall be entitled to perform partial delivery of the order, provided that the Purchaser is notified in advance of the partial delivery.
4.1 Should the Supplier become aware that he will not be able to deliver the Products at the agreed date of delivery, he shall forthwith notify the Purchaser thereof in writing. The notification shall include a description of measures the Supplier considers appropriate to recover or limit the delay, if any, and a new delivery date.
4.2 If a delivery is delayed due to circumstances for which the Supplier is liable, Purchaser may request Supplier shall pay liquidated damages to Purchaser limited to 0,35% per calendar week of the purchase price for the delayed Products, limited in total to 7,5% of the purchase price for the delayed Products.
4.3 The liquidated damages become due at Purchaser’s written demand but not before the complete order of Products has been delivered or the maximum liquidated damages, ref clause 4.2, for the delayed Products are reached. Purchaser loses his right to liquidated damages if he has not lodged a written claim for such damages within one month after the time when the written claim could have been lodged.
4.4 Notwithstanding anything to the contrary elsewhere in these Conditions or in law, Supplier and Purchaser agree that no liquidated damages for delay shall become due and payable by Supplier to Purchaser unless the Purchaser could have started receiving beneficial use of the Products but for Supplier’s delay.
4.5 If delivery is delayed due to circumstances for which the Purchaser is liable or which is due to Force Majeure (according to clause 8) a new delivery date may be agreed to conditional on the Supplier’s acceptance.
5. PRICE AND PAYMENT
5.1 All prices quoted by Supplier are EX WORKS (EXW Incoterms 2010) unless otherwise agreed in writing in advance. Additional costs such as shipment, insurance, customs duties and other duties imposed, will be charged separately and specified in the Supplier’s invoice.
5.2 The Supplier reserves the right to adjust the prices for orders when significant events occur that will lead to abrupt increases of materials and components or unfavorable developments in the currency situation. Such price adjustments will be made in writing to the Purchaser stating the cause of the adjustment. If the price adjustment passed on from the Supplier leads to a price increase of more than 10% of the ordered goods, the Purchaser shall have the right to cancel the relevant order(s).
5.3 The Purchaser shall pay the Supplier’s invoice according to the terms of payment stated in the Supplier’s sales invoice, order confirmation or as otherwise agreed. The Purchaser has no right to make deductions in the invoice or to exercise any right of retention, counterclaims or set offs against the invoice.
5.4 If the Purchaser fails to pay the invoice when due, the Supplier shall be entitled to interest from the day on which payment was due. The interest rate shall be according to what is stated in the Supplier’s sales invoice or according to other agreements, but shall in any case not be less than 12% pro annum.
5.5 In case of agreed instalment payments, any default from the Purchaser in fulfilling the payment terms shall cause the total outstanding amount to become due immediately without requiring any further notification. All debt collection charges including legal fees shall be at the expense of the Purchaser.
5.6 The Supplier may hold back a delivery or parts thereof if the Supplier in its sole opinion, suspects that the Purchaser may not be able to fulfil his payment obligations or other obligations. The Supplier shall without delay notify the Purchaser of such suspension of delivery and the reason therefore. The Supplier shall resume delivery if the Purchaser provides adequate security for the Purchaser’s performance of his obligations.
6. DEFECTS IN THE PRODUCTS
6.1 The Supplier shall, in accordance with the provisions of clauses 6 and 7, remedy manufacturing and material defects in the Product.
6.2 The Supplier’s liability is limited to defects which appear within the following time period from the date of delivery of the Product:
(i) For Glamox LED products (except Series 65 Arctic), Supplier’s liability is limited to manufacturing and material defects which appear within five (5) years from the date of delivery of the Product
(ii) For Series 65 Arctic and all other Products, Supplier’s liability is limited to manufacturing and material defects which appear within two (2) years from the date of delivery of the Product
6.3 The Supplier is not liable for defects arising out of material provided by the Purchaser or a design stipulated or specified by the Purchaser.
6.4 The precondition for repair or replacement of the defective Products related to manufacturing or material defects under the warranty period detailed in clause 6.2 shall be that the Products have been used and or installed;
- Purely in accordance with their intended purpose and application specifications,
- Within the specified operational envelope, e.g. environment boundaries,
- With power within the specified range, i.e. voltage, current and frequency boundaries,
- In a professional and legal manner and in accordance with product data sheet, service manual and installation instructions provided.
Supplier’s liability does specifically not cover;
- Product defects due to general incorrect or negligent storing or use of the Products,
- Product defects due to exposure to extreme conditions, e.g. thunder, lightning, water ingress, fire, bad ventilation or other conditions beyond the control of the Supplier,
- Parts that need to be replaced due to normal wear and tear, e.g. conventional light sources, starters, and batteries,
- Failures due to compatibility issues between the products and the installation environment, e.g. control systems, power supply systems etc.
- Products that have been modified or repaired without the prior written approval of the Supplier,
- Normal maintenance and repair work of the installed Products;
6.5 The Supplier’s liability does not cover defects caused by circumstances, which arise after the risk has passed to the Purchaser.
6.6 The Purchaser shall notify the Supplier in writing of any defects in the Products that have been detected upon arrival inspections, installation or use of the Products, immediately, and no later than 5 days following the delivery of the Products. Should the Purchaser fail to provide the Supplier with such notification, the Supplier shall be discharged of any liability for defects in the Products that reasonably could have been detected by such inspections. For defects that reasonably could not have been detected by such inspections, the Purchaser shall notify the Supplier in writing of the defects as soon as the defect has appeared and in no event later than 5 days after the defect appeared. The notice shall contain a description of how the defect manifests itself. If the Purchaser fails to notify the Supplier in writing within the above time limits, he loses his right to make any claim in respect of the defect.
6.7 After receipt of a written notice under Clause 6.6, the Supplier shall remedy the defect. The Supplier shall be given reasonable time and opportunity for such repair or replacement and any denial of the same by the Purchaser shall discharge the Supplier from his liability.
6.8 The Supplier may demand that the Purchaser sends the defective Product to him, or to a place instructed by him, for repair or replacement. In such case the Supplier has fulfilled his obligations in respect of the defect when he delivers a duly repaired or replaced Product to the Purchaser. If remedy of the defect requires intervention in other products and equipment than the Product, the Purchaser shall be responsible for any work or costs caused thereby.
6.9 All transports in connection with remedial work shall be at the Supplier’s risk and expense, with the following exceptions:
(i) If the Product is located elsewhere than at the place of delivery, the Purchaser shall bear the increase of costs for remedying the defect which the Supplier incurs as a result thereof, and
(ii) notwithstanding place of delivery, Supplier is not liable for any costs related to transport from onshore base to offshore site and return, any stay offshore, heavy lift operations offshore or additional cost in connection with work performed below the waterline.
The Purchaser shall follow the Supplier’s instructions regarding how the transport shall be carried out.
6.10 If the Purchaser gives such notice as referred to in Clause 6.6, and no defect is found for which the Supplier is liable, the Supplier shall be entitled to compensation for the work and costs which he has incurred as a result of the notice.
6.11 For Products which have been remedied under this clause 6, the Supplier’s liability is limited to defects which appear within one (1) year from the date of completion of the repair or delivery of the replacement Product, unless the remaining part of the original warranty period, ref clause 6.2 , is longer.
6.12 If the repair or replacement of defective Products is unsuccessful or cannot be effected within a reasonable time frame, the Purchaser shall be entitled to cancel the purchase of the defective Products whereby the Supplier shall credit the Purchaser for the payments that have already been made for the defective Products (if any).
6.13 The Supplier’s liability as detailed in this clause 6 shall be Supplier’s sole obligations in the event of manufacturing and material defects in the Product.
7. LIMITATION OF LIABILITY
7.1 Except as expressly stated in clause 6 above, the Suppliers liability is limited to claims for damages caused by the Supplier’s gross negligence or wilful misconduct.
7.2 The Supplier’s liability is under any circumstance, limited to direct losses, whereby the Supplier shall not be liable for indirect or consequential losses such as, but not limited to, stop in Purchaser’s production or sale, deprivation, loss of profit due to the Purchaser not being able to fulfil contracts with its customers or others and damage caused by the Products to other products.
7.3 Supplier’s total liability for breach of contract, including liability in accordance with clause 6, shall under any circumstance be limited to 50 % of the purchase order.
7.4 The Supplier shall, to the extent permitted by applicable law, have no liability for personal injuries or property damage caused by the Products.
7.5 The Purchaser’s right to claim compensation for damages shall, except as stated in clause 6, only apply twelve (12) months after the date of delivery of the Products.
8. FORCE MAJEURE
8.1 The obligations of either party in relation to a sale by the Supplier shall be suspended to the extent that such performance is impeded or made unreasonably onerous by an occurrence beyond the control of the party affected, provided that such party could not reasonably have foreseen such occurrence at the time of entering into the contract and could not reasonably have avoided or overcome it or its consequences (Force Majeure). Force Majeure includes, but is not limited to, industrial disputes, fire, extreme weather, pandemics, 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 above whether occurring prior to or after the formation of the contract.
8.2 The party that claims being in a Force Majeure situation shall notify the other party in writing without delay when the circumstance starts and when it ends. If Force Majeure prevents the Purchaser from fulfilling his obligations, he shall compensate the Supplier for expenses incurred in securing and protecting the Products.
8.3 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 due to Force Majeure for more than three months.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 The Supplier shall have unrestricted title to intellectual property rights and know-how related to the Products and any documentation or drawings provided to the Purchaser in conjunction with an offer or delivery of any Products.
9.2 Any documentation or drawings provided by the Supplier to the Purchaser shall not be used for any other purpose than that for which they were provided and may not without the prior written consent of the Supplier otherwise be used or copied, reproduced, transmitted or communicated to third parties.
9.3 Any documentation, illustrations, drawings, specifications, measurements or similar data provided by the Supplier according to an offer or a contract shall constitute mere normal guidelines except where otherwise specifically stated by the Supplier.
10. EXPORT CONTROL AND SANCTIONS
10.1 Purchaser acknowledges that Supplier is required to comply with applicable export control laws and regulations as well as sanctions law relating to the sale, export, import, transfer, assignment, disposal and use of the Products, including license requirements. Purchaser agrees that Products will not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with any export control laws and regulations or with any sanctions law.
10.2 Supplier’s continuing performance hereunder is conditioned on compliance with such export control laws and regulations and sanctions law at all times.
11. RETENTION OF TITLE
11.1 Ownership to and right of disposal of the Products (hereunder the right of pledging or reselling the Products) does not pass to the Purchaser until the Purchaser has fulfilled all his contractual obligations towards the Supplier, hereunder payment of the entire purchase price for the Products. The Purchaser shall at the Supplier’s request assist him in taking any measures necessary to protect the Supplier’s title to the Products in the country concerned.
11.2 The retention of title in this clause 11 shall not affect the passing of risk according to clause 3.
12. LIMITATION ON USE OF THE PRODUCTS
12.1 The Purchaser shall not be entitled to use or resell the Products for any other purposes than what it is intended for.
13. PLACE OF PERFORMANCE AND APPLICABLE LAW
13.1 Place of performance in respect of delivery of the Products and the Purchaser’s payment of the Supplier’s invoice shall be the registered office of the Supplier as stated in the order confirmation.
13.2 Any disputes arising from the contractual relationships between the parties shall be governed by Norwegian Law and the parties submit to the exclusive legal venue of the Oslo city court (Oslo tingrett). The Supplier may, however, at its sole discretion institute legal proceedings against the Purchaser at any other applicable legal venue.
13.3 Additional agreements, provisions, amendments and supplements to these Conditions shall not be valid unless made in writing and signed by both parties.