TERMS AND CONDITIONS

General Terms & Conditions for Sale

Applicability. Definitions

1.1

These terms and conditions applies as long as the Parties have not

agreed otherwise in Writing. These terms and conditions are based on

NL 09 E.

1.2

In these conditions, Seller means Extenso AS. Confirmation means

Seller’s order Confirmation. Buyer means the company and/or the

person stated with name in the bill-to section on the Confirmation.

Purchase Order means Buyer’s Purchase Order. Seller and Buyer

hereinafter individually referred to as Party and jointly referred to as

Parties. The Product means the Goods, Engineering and Documents to

be delivered according to the Confirmation.

1.3

When these conditions use the word Writing it means a document duly

signed by both Parties. For a written notification, notice or when one

Party in writing notify the other Party it may be considered not

necessary with signature from both Parties.

General reservation

Seller’s quote is based on existing conditions on the date the quote was

submitted.

Seller has the right to make reasonable adjustments as a result of any

changes not expected by Seller or outside Seller's control. Buyer will be

given a written notice of that adjustment along with an updated quote,

which will be deemed accepted if no objections have been received

from Buyer within 5 working days.

The Contract

These terms and conditions are referred to as the Contract. The

Contract contains all the terms and conditions agreed by either Party for

the Product as stated in the Confirmation.

The Confirmation is binding unless Buyer within a reasonable time

raise objections.

No amendment to the Contract shall binding on Seller unless otherwise

agreed in Writing duly signed by both Parties.

Product information

All data in marketing materials, price lists and other product information

are only binding to the extent that it is expressly referred to in the

Contract or in an additional agreement between the Parties.

Technical Documentation and Information

5.1

All technical documentation regarding the Product or its manufacture

submitted by one Party to the other, prior or subsequent to the

formation of the Contract, shall remain the property of the submitting

Party.

Technical documentation received by one Party shall not without the

written consent from the submitting Party, be used for any other

purpose than that for which it was submitted. Except for documentation

referred to in Clause 5.2, documentation may not without the written

consent from the submitting Party be copied, reproduced, transmitted or

otherwise communicated to a third party.

5.2

The Product is intended for Buyer or any third party with sufficient

knowledge about the installation, commissioning, operation and

maintenance (including running repairs) of all parts of the Product.

Seller may at Buyer’s request, provide technical documentation

sufficiently detailed to permit Buyer to carry out installation,

commissioning, operation and maintenance (including running repairs)

of all parts of the Product.

Any and all use of the Product is nevertheless subject to Buyer’s sole

risk and responsibility.

Sealing Solution Proposal [SSP]

6.1

For applications where no known solution exists, or circumstances

indicating that a new solution must be obtained, Seller shall where

appropriate suggest solution based on information from Buyer and

proposal as described in Seller’s SSP.

Depending on the scope of SSP, the price for each SSP is in itself to

be agreed between the Parties, from time to time. Depending on the

scope and/or assignment, Seller will require a separate non-disclosure

agreement before any assignment.

6.2

The SSP is based on Seller’s experience, knowledge and Background.

Buyer undertakes to check the SSP for the specific application(s) and if

further investigation and/or testing should be performed.

6.3

When Buyer choose to issue a Purchase Order based on the SSP and

its related quote, if any, Buyer undertakes all risk and responsibility. In

such a case, the SSP becomes Buyer’s requirements related to the

Product. Seller does not undertake any liability in the individual case

due to the diversity of the possible variations in the practical application

in respect of the particularity of applications, further processing or the

otherwise use of the Product.

6.4

Buyer is obliged to check whether Seller’s Product correspond to the

supplied data, recommendations and test results and undertakes full

liability in respect of the application, use and further processing of the

Product as well as the use of information.

6.5

No liability whatsoever shall attach to the Product produced by Seller

for any infringement of the rights owned or controlled by a third

independent party which may be caused by the use or further

processing of the components by Buyer.

Intellectual Property Rights [IPR]

7.1

IPR includes but is not limited to, all commercial and technical

information, know-how, trade secrets including all kinds of technology,

ideas, concepts, drawings, inventions, formulas, processes,

procedures, specifications, computer programs, data, patents, patent

applications, trademark, trademark applications, designs and design

applications, copyrights, and documentation or information together

with copies of same irrespective of means of storage.

7.2

Background IPR means all IPR owned by, developed or licensed to a

Party prior to entering into the Contract.

7.3

Foreground IPR means all IPR, which are related to the result of an

assignment or a Purchase Order from Buyer, which are not limited or

restricted by definitions of Background IPR.

7.4

All Foreground developed by Seller or its subcontractors in connection

with the assignment or Purchase Order, or otherwise derived from

Seller shall be the property of Seller.

Indemnification

Either Party shall indemnify the other Party against any claims resulting

from infringement of patent or any other intellectual property rights in

existence at the date of the Contract, in connection with the assignment

or Purchase Order where such an infringement results from the use of

drawings or specifications provided by the indemnifying Party. Seller’s

responsibility related to infringement are limited to the country as

corresponds to the delivery address as stated in the Purchase Order.

Terms of delivery

9.1

If not otherwise agreed in writing the terms of delivery is ex works

Seller’s address according to the prevailing INCOTERMS.

9.2

Buyer is obliged to examine the Product upon receipt for possible errors

and/or omissions. Buyer must notify Seller in writing within 8 days from

receipt of Product for possible errors and/or omissions.

9.3

If Seller does not receive notification as stated in Clause 9.2, Buyer

shall pay for the Product in accordance with the Contract.

Time for delivery

Delivery date shall mean date of shipment from Seller.

Delay

11.1

If Seller finds that Seller will not be able to deliver the Product at the

agreed time or if delay on Seller’s part seems likely, Seller shall without

undue delay notify Buyer thereof in writing, stating the reason for the

delay and if possible the time when delivery can be expected. If Seller

fails to give such notice, Seller shall, regardless of the provisions of

Clauses 12.1 and 12.2 reimburse Buyer for any additional expenses,

which the latter incurs and which Buyer have avoided, had Buyer

received notice in time.

11.2

If delay in delivery is caused by a circumstance, which under Clause

17.1 constitutes ground for relief or by an act or omission on the part of

Buyer, including suspension by Seller under Clause 13.4, the time for

delivery shall be extended by a period, which is reasonable having

regard to the circumstances in the case. The time for delivery shall be

extended even if the reason for delay occurs after the originally agreed

time for delivery.

Liquidated damages

12.1

If Seller fails to deliver the Product on time, Buyer is entitled to

liquidated damages from the date on which delivery should have taken

place.

The liquidated damages shall be payable at a rate of one per cent of

the agreed price for each commenced week of delay. If the delay

concerns only a part of the Product, the liquidated damages shall be

calculated on the part of the price, which is properly attributable to the

part of the Product, which cannot be taken in use due to the delay.

The liquidated damages shall not exceed ten per cent of that part of

the price on which it is calculated.

The liquidated damages become due at Buyer’s written demand but

not before the complete Product has been delivered or the Contract is

terminated under Clause 12.2.

Buyer loses the right to liquidated damages if Buyer has not lodged a

written claim for such damages within one month after the time when

delivery should have taken place.

12.2

If the delay is such that Buyer has become entitled to maximum

liquidated damages under Clause 12.1, and the Product is still not

delivered, Buyer may in writing demand delivery within a final

reasonable period which shall not be less than two weeks.

If Seller fail to deliver within such final period and this is not due to any

circumstance for which Buyer is responsible, Buyer may, by written

notice to Seller, terminate the Contract in respect of that part of the

Product which cannot be taken in use due to the delay.

In case of such termination Buyer shall also be entitled to

compensation for the loss Buyer suffers due to Seller’s delay to the

extent that the loss exceeds the maximum of liquidated damages which

Buyer may claim under Clause 12.1. This compensation shall not

exceed ten per cent of that part of the price, which is properly

attributable to the part of the Product in respect of which the Contract is

terminated.

Buyer shall also have the right to terminate the Contract by written

notice to Seller if it is clear that there will be a delay, which under

Clause 12.1 would entitle Buyer to maximum liquidated damages. In

case of termination on this ground Buyer shall be entitled to both

maximum liquidated damages and compensation under the third

paragraph of this Clause.

Except for liquidated damages under Clause 12.1 and termination of

the Contract with limited compensation under this Clause 12.2, all

claims in respect of Seller’s delay shall be excluded. This limitation of

Seller’s liability shall not apply, however, where Seller has been guilty of

gross negligence.

12.3

If Buyer finds that Buyer will be unable to accept delivery of the Product

on the agreed date, or if delay on Buyer’s part seems likely, Buyer shall

without undue delay notify Seller thereof in writing stating the reason for

the delay and, if possible, the time when Buyer will be able to accept

delivery.

If Buyer fails to accept delivery on the agreed date, Buyer shall

nevertheless make any payment which is dependent of delivery as if

the Product had been delivered. Seller shall arrange storage of the

product at Buyer’s risk and expense. If Buyer so requires, Seller shall

insure the Product at Buyer’s expense.

12.4 Unless Buyer’s failure to accept delivery as referred to in Clause 12.3 is due to any such circumstances as described in Clause 17.1, Seller may by written notice require Buyer to accept delivery within a reasonable period.

If, for any reason for which Seller is not responsible, Buyer fails to accept delivery within such period, Seller may, by written notice to Buyer, terminate the Contract in respect of that part of the Product which is ready for delivery but has not been delivered due to Buyer’s default. The compensation shall not exceed that part of the price which is properly attributable to the part of the Product in respect of which the Contract is terminated.

13Payment

Unless otherwise agreed, payment shall be made against invoice 30 days after the date of the invoice.
Any objections to any invoice must be notified in written by Buyer to Seller within 8 days from receipt of invoice.
If Seller does not receive notification as stated in Clause 13.2, Buyer shall pay for the Product in accordance with the Contract.
If Buyer fails to pay in time, Seller shall be entitled to interest from the due date at the rate of interest determined by the law on late payments in Seller’s country.

If Buyer fails to pay by the due date, Seller may also, after having notified Buyer in writing thereof, suspend performance of Seller’s Contractual obligations until payment is made.

If Buyer fails to pay on time, Buyer will receive from Seller one – 1 written demand for payment within 14 days. If Buyer fails to pay within 14 days Seller will, without further notice, initiate debt collection procedures, and ultimately notify legal proceedings, pursuant to Clause

18. Buyer hereby acknowledges this.

14Retention of title

The Product shall remain the property of Seller until paid for in full, to the extent that such retention of title is valid.

This Clause does not regulate the ownership to IPR or the license to IPR. IPR is regulated in Clauses 5 and 7.

15Liability for defects

Seller shall, in accordance with the provisions of Clauses 15.2-15.13 below, remedy any defect in the Product resulting from faulty design, materials or workmanship.

Where Seller is liable for a defect Seller shall also be liable for damage to the Product that is caused by the defect.

Seller is not liable for defects arising out of material provided by Buyer or a design stipulated or specified by Buyer.

Seller’s liability does not cover defect caused by circumstances, which arise after the risk has passed to Buyer. The liability does not, for example, cover defects due to conditions of operation deviating from those anticipated in the Contract or to improper use of the Product. Nor does it cover defects due to faulty maintenance or incorrect installation on the part of Buyer, alterations undertaken without Seller’s written consent or faulty repairs by Buyer. Finally, the liability does not cover normal wear and tear or deterioration.
Seller’s liability is limited to defects which appear within a period of one year from the date of delivery of the Product. If the Product is used more intensely than agreed, this period shall be reduced proportionately.
For parts, which have been repaired or replaced under Clause 15.1, Seller shall have the same liability for defects as for the original Product for a period of one year. For other parts of the Product the liability period defined in Clause 15.3 shall be extended only by the period during which the Product could not be used due to a defect for which Seller is liable.
Buyer shall notify Seller in writing of a defect without undue delay after the defect has appeared and in no case later than two weeks after the expiry of the liability period specified in Clauses 15.3 and 15.4. The notice shall contain a description of how the defect manifest itself. If Buyer fails to notify Seller in writing within the above time limits, Buyer loses the right to make any claim in respect of the defect.

If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, Buyer loses the right to make any claim based on damage which occurs and which would have been avoided if such notice had been given.

After receipt of a written notice under Clause 15.5, Seller shall remedy the defect without undue delay. Within this limit, the time for remedial work shall be chosen in order not to interfere unnecessarily with Buyer’s activities. Seller shall bear the costs as specified in Clauses 15.1-15.13. Remedial work shall be carried out where the Product is, unless Seller with regard to the interest of both Parties finds it more suitable to have the Product sent to Seller or to a place instructed by Seller.

If the defect can be remedied by replacing or repairing the defective part, and if removal and re-installation of the part does not require special knowledge, Seller may demand that Buyer sends the defective part to Seller, or to a place instructed by Seller, for repair or replacement. In such case, Seller has fulfilled his obligations in respect of the defect when Seller delivers a duly repaired or replaced part to Buyer.

If remedy of the defect requires intervention in other equipment than the Product, Buyer shall be responsible for any work or costs caused thereby.
All transports in connection with remedial work shall be at Seller’s risk and expense. Buyer shall follow Seller’s instructions regarding how the transport shall be carried out.
Buyer shall bear the increase in costs for remedying a defect which Seller incurs when the Product is located elsewhere than at the destination for Seller’s delivery to Buyer stated at the formation of the Contract, or – if no destination has been stated – the place of delivery.

Defective parts, which are replaced under Clause 15.1, shall be placed at Seller’s disposal and shall become his property.
If Buyer gives such notice as referred to in Clause 15.5 and no defect is found for which Seller is liable, Seller shall be entitled to compensation for the work and costs which Seller has incurred as a result of the notice.
If Seller fails to fulfill his obligations under Clause 15.6 within a reasonable time, Buyer may by written notice require Seller to do so within a final time. If Seller fails to fulfill his obligations within that time limit, Buyer may at his option:
1. Carry out or have the necessary remedial work carried out at Seller’s risk and expense, provided that Buyer proceeds in a reasonable manner, or
2. Demand a reduction of the agreed purchase price not exceeding twenty per cent thereof.

If the defect is substantial, Buyer may instead terminate the Contract by written notice to Seller. Buyer shall also be entitled to such termination where the defect remains substantial after measures referred to in a).

In case of termination, Buyer shall be entitled to compensation for the loss Buyer has suffered. The compensation shall not, however, exceed twenty per cent of the agreed purchase price.

Regardless of the provisions of Clauses 15.1-15.12, Seller shall have no liability for defects in any part of the Product for more than two years from the start of the liability period referred to in Clause 15.3.
Seller shall have no liability for defects save as stipulated in Clauses 15.1-15.13. This applies to any loss the defect may cause, such as loss of production, loss of profit and other consequential economic loss. This limitation of Seller’s liability shall not apply, however, if Seller has been guilty of gross negligence.

14Exclusion of Liability. Indemnification

The Parties shall defend, indemnify and hold each other harmless from any and all liability for death, disease or injury to any third party and loss of or damage to any third party property and against all claims, losses, damages, costs and expenses, including legal fees resulting there from, arising out of the Purchase Order.
Seller shall defend, indemnify and hold Buyer harmless from Seller’s own indirect losses and damages, and Buyer shall defend, indemnify and hold Seller harmless from Buyer’s own indirect losses and damages. This applies regardless of any liability, whether strict or by negligence, in whatever form, on the part of either Party. Indirect losses and damages according to this Clause include but are not limited to: loss of earnings, loss of business opportunity, loss of profit, and loss of production.
Either Party shall indemnify the other Party from and against any claim concerning:
1. Personal injury to or loss of life of any employee of any Party, and
2. Loss of or damage to any Property of any Party,

and which might arise in connection with the Contract or be caused by the Product in their lifetime. This applies regardless of any form of liability, whether strict or by negligence, in whatever form, on the part of the Parties.

Either Party shall, as far as practicable, ensure that other companies affiliated to each Party in connection with this Contract waive their rights to make any claim against a Party when such claims are covered by the Parties obligations under the provisions of this clause 16.3.

By whatever incident or consequence arising, Seller’s liability is limited to that covered by Seller’s insurance policy that applies to corporate liability, product liability, liability for mutual indemnification and liability for consulting engineering services.

15Grounds for Relief (Force Majeure)

The following circumstances shall constitute grounds for relief if they impede the performance of the Contract or makes performance unreasonable onerous: industrial disputes and any other circumstance beyond the control of the Parties, such as fire, natural disasters and extreme natural events, war, mobilization or military call up of a comparable scope, requisition, seizure, trade and currency restrictions, insurrection and civil commotion, shortage of transport, general shortage of materials, restrictions in the supply of power and defects or delays in deliveries by suppliers or sub-contractors caused by any such circumstance as referred to in this Clause.

The above-described circumstances shall constitute grounds for relief only if their effect on the performance of the Contract could not be foreseen at the formation of the Contract.

The Party wishing to claim relief under Clause 17.1 shall without delay notify the other Party in writing on the intervention and on the cessation of such circumstance.

If grounds for relief prevent Buyer from fulfilling his obligations, Buyer shall reimburse the costs incurred by Seller in securing and protecting the Product.

Notwithstanding other provisions of these General Conditions, either Party shall be entitled to terminate the Contract by notice in writing to the other Party, if performance of the Contract is delayed more than six months by reason of any grounds for relief as described in Clause 17.1.

16Disputes. Applicable Law

The laws of Norway shall govern all disputes arising out of or in connection with the Contract. The Parties will attempt to resolve all conflicts in a positive atmosphere. If such negotiations are unsuccessful, the dispute may be brought before Oslo City Court.

TERMS AND CONDITIONS

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