General Terms and Conditions for Sale
The provisions contained herein shall apply to all offers made by the seller and all orders accepted by the seller, unless clearly stated otherwise. The provisions herein shall have precedence over any other document referred to in the agreement, except the special terms set out in each individual order, where the latter shall prevail. Where the special terms apply it will be explicitly stated in the order.
Furthermore, these general terms as laid out in this document shall prevail over any terms and conditions referred to in any order or other document emanating from the buyer. Any failure or delay on the seller’s behalf in exercising his rights under any provision of this agreement shall not be construed as a waiver of those rights at any time now or in the future.
This document may be amended or modified only by written agreement of duly authorized representatives of both parties.
“Seller” means Nortek AS.
“Buyer” means the legal entity purchasing Goods from Seller. “Goods” means the products offered by Seller and/or purchased by Buyer. “Offer” means any quote, proposal, or offer to sell Goods provided by Seller to Buyer. “Order” means any purchase order or similar instrument issued by Buyer to Seller to purchase Goods.
Unless stated otherwise in writing by Seller, the prices offered apply only to the specific quantities, specifications, and delivery schedules set forth in Seller’s Offer. Any variation or fluctuation in quantity, specifications, delivery schedules or shipping costs may necessitate a price and/or delivery schedule adjustment.
Unless stated otherwise, all prices for domestic deliveries and international deliveries are Ex-Works, as defined by INCOTERMS 2020.
4. CREDIT APPROVAL AND PAYMENT
Standard payment terms for domestic Orders are net thirty (30) days from date of Seller’s invoice, subject to credit approval of Buyer by Seller. Payment terms for international orders may be cash in advance by wire transfer or an irrevocable letter of credit confirmed with Seller’s bank. Credit terms, shipments, and performance of work are at all times subject to the approval of Seller’s Credit Department. Each shipment is a separate and independent transaction and payment must be made by Buyer accordingly.
If, prior to shipment of Buyer’s Order, Buyer fails to fulfill the terms of payment of any prior invoice submitted by Seller or, if in the opinion of Seller, Buyer’s financial condition becomes impaired or unsatisfactory, Seller reserves the right to change, without notice, the terms of payment and/or delay or discontinue further shipments, without prejudice to any other available legal remedies, until past due obligations have been paid and Seller has received acceptable assurance regarding Buyer’s prompt payment of future obligations. All amounts due to Seller but not paid by Buyer on the due date bear interest payable by Buyer to Seller at a rate of one (1) percent per month.
The amount of any present or future sales, use, excise, import duty, or other tax applicable to the manufacture, sale, or lease of Goods will be added to the invoice and must be paid by Buyer, unless Buyer provides Seller with a tax exemption certificate acceptable to the applicable taxing authority.
6. SHIPPING TERMS AND RISK OF LOSS
All domestic and international shipments by Seller are Ex-Works (EXW), as defined by INCOTERMS 2020. Risk of loss for Goods will transfer to Buyer upon Seller presenting Goods to carrier. If Seller prepays shipping, insurance, or other related costs, Buyer agrees to reimburse Seller promptly for the actual costs incurred by Seller.
Unless otherwise provided by special written agreement signed by Seller and Buyer, all tooling, fixtures, equipment, tools, software, and designs produced, acquired, or used by Seller for the purposes of filling Buyer’s Order remain the property of Seller.
8. PACKING AND PACKAGING
Seller’s prices for Goods include Seller’s standard commercial packing and packaging. Any non-standard or special packing or packaging requirements requested by Buyer will be provided by Seller at additional cost to Buyer.
9. DELIVERY SCHEDULES AND DELAY
Shipping dates are approximate and require prompt receipt of all necessary Buyer-furnished information and material if applicable. Seller is not liable for any damages, re-procurement costs, or penalties related to late deliveries.
Without limiting the generality of the foregoing, Seller is not liable for any delays due to force majeure including, but not limited to, weather conditions, acts of God, acts of civil or military authorities, fires, strikes, job actions, floods, earthquakes, epidemics, quarantine restriction, war, terrorism, riot, supplier or vendor delays, or any other causes beyond the reasonable control of Seller.
In the event of such delay, Seller will promptly notify Buyer and the date(s) of delivery will be deferred for a period commensurate with the time lost due to the delay. If the excusable delay under force majeure continues for more than ninety (90) days, Seller and Buyer will each have the option of terminating the affected Order(s) under Article 12, Termination for Convenience. If Seller’s production is curtailed for any of the above reasons so that Seller is unable to deliver the full quantity of Goods scheduled for delivery to Buyer, Seller may allocate deliveries of available Goods among its various customers then under order for similar Goods. The allocation will be made in a commercially fair and reasonable manner. When such allocation has been made, Buyer will be notified of the estimated quota made available.
10. HARDSHIP AND FORCE MAJEURE
The non-performance of a party shall be excused to the extent that the performance is rendered impossible or unreasonably onerous (as regard to delivery dates, prices or the quantity to be delivered) by the occurrence of an event that is beyond the parties’ reasonable control. Such events include but are not limited to: weather conditions, acts of God, acts of civil or military authorities, fires, strikes, job actions, floods, earthquakes, epidemics, quarantine restriction, war, terrorism, riot, supplier or vendor delays. In the case of such an event occurring, the party claiming force majeure will promptly notify the other party. The parties to this agreement will then consult so as to find a reasonable way to adjust the agreement in order to permit its further performance. If the parties do not reach an agreement, each party retains the option to terminate the original agreement.
Failure in performance of any payments, reimbursements or to issue credits shall not be excusable under this clause.
Seller’s goods are made on command for each individual buyer. Orders that are cancelled less than two (2) weeks before the planned shipping date, figuring on the order confirmation, will incur a 25-percent cancellation fee.
12. TERMINATION FOR DEFAULT
Either Party may terminate the Order if the other Party breaches a material provision of this Agreement or of the Order. By breach of a material provision is to be understood a fundamental breach of the agreement amounting to a non-performance. In determining whether a breach is to be considered as fundamental and as such giving rise to the right to terminate, the following shall be taken into account: Whether the non-performance substantially deprives the aggrieved party of what it was entitled to expect under the contract, unless the other party did not foresee and could not reasonably have foreseen such result. The strict compliance with the obligation that has not been performed is of essence under the contract. The non-performance is intentional or reckless. The non-performance gives the aggrieved party reason to believe that it cannot rely on the other party’s future performance. In the event that a Party (the “Defaulting Party”) is in breach of a material provision of this Agreement or the Order, the other Party (the “Non-Defaulting Party”) will submit a written cure notice to the Defaulting Party advising of such breach. The Defaulting Party will have fifteen (15) days to cure the breach. If the Defaulting Party does not cure the breach within the fifteen (15) day period, the Non-Defaulting Party may terminate the Order.
13. CHANGE ORDERS AND AMENDMENTS
All change order requests must be submitted by Buyer to Seller in writing and will not be effective unless and until Seller consents in writing to the change(s). Seller will advise Buyer in writing of the price and/or delivery schedule impact, if any, of the change request. Seller’s acceptance of changes will be subject to Buyer’s agreement to any price and/or delivery schedule adjustments.
14. LIMITED WARRANTY
Seller warrants that the Goods manufactured by Seller will be free from defects in material and workmanship for a period of twelve (12) months from the date of original shipment, when operated in accordance with the instructions and safety measures that have been laid out by Seller in the corresponding user guide/website for each individual product. This warranty does not apply to components and consumables that have shorter third-party manufacturer’s warranty periods. Components and consumables manufactured by third parties will bear the warranty of their manufacturer. The warranty does not cover shortcomings that are due to design errors or any form of consequential damages that are the result of errors in measurements. In the event that Buyer identifies any defects in material or workmanship, Buyer will promptly notify Seller of the defective Goods and the specific nature of the defect in accordance with Article 15, Return Authorizations. Seller, at its sole discretion, will either repair or replace any such Goods found by Seller to be defective, which shall constitute Buyer’s sole remedies under this Agreement and any other remedies, either express or implied by law, shall be considered waived by Buyer. Seller’s warranty does not apply to any Goods that have been subjected to improper installation, damage during employment, misuse, alteration, repair, neglect, accident, inundation, fire, or the like. THIS WARRANTY APPLIES TO ALL OFFERS MADE BY SELLER AND TO ALL ORDERS ACCEPTED BY SELLER, UNLESS OTHERWISE SPECIFIED IN WRITING FOR EACH INDIVIDUAL PRODUCT. IN THE CASE OF GOODS OTHER THAN THOSE OF SELLER’S OWN MANUFACTURE, SELLER MAKES NO WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED.
15. RETURN AUTHORIZATIONS
Buyer will promptly notify Seller of any non-conformance(s) in the Goods, accompanied with a description of the claimed non-conformance(s) and afford Seller a reasonable opportunity to inspect the Goods. No Goods may be returned without Seller’s prior authorization, as evidenced by a return merchandise authorization (RMA) in written form obtained on demand. Once a return authorization number is obtained, Buyer will return the defective Goods. Neither freight insurance nor transportation nor import/export duties are covered by Seller. Buyer must take the necessary precautions so as to insure the goods before returning the product for repair. Seller is not held responsible for any damages or loss occurring during shipment, nor is Seller liable for any consequential damages as a result of returning goods becoming damaged or lost during shipment. Failure to follow Seller’s return procedures may result in lost Goods, delays, additional service, restocking charges, warranty denial, or refusal of a shipment. The return authorization number must appear on the shipping label and on all paperwork associated with the return. Seller has the right to reject Goods returned without the correct return authorization number clearly marked on the outside of the shipping container. Granting a return authorization number does not necessarily mean that a credit will be approved or that the evaluation or repair will take place without a fee. New, unused, standard stock parts returned for credit will be subject to a $25.00 or 15-percent minimum handling charge, whichever is greater.
16. INTELLECTUAL PROPERTY AND INDEMNIFICATION
Buyer acknowledges that any and all of the intellectual property rights (including inventions, patents, trademark and copyright) and the know-how used or embodied in, or in connection with the product sold (including the user guide) shall remain the sole property of Seller. In the event that new know-how is generated or arises, or that the invention (product) evolves as a consequence of the performance, or as a result of this agreement, Buyer acknowledges that all intellectual property rights therein shall belong to Nortek AS, unless otherwise agreed in writing. Buyer agrees to indemnify and hold Seller harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees) made against Seller by a third party due to or arising out of or in connection with this agreement: To the extent that one Party’s employees or agents enter on the property owned or controlled by the other Party, the first Party will indemnify and hold harmless the other Party, its officers, directors, and employees for any property damage or bodily injury or death caused by the first Party’s employees or agents.
Subject to Buyer’s compliance with the terms of this agreement and the Order, Buyer is granted a non-exclusive, irrevocable, perpetual, worldwide license to use any of Seller’s intellectual property rights vested or embedded in the Goods. The license granted hereunder is limited to the extent such license is necessary for Buyer to use, market and distribute the Goods in accordance with their purpose. Under no circumstance will Buyer be entitled to use the Seller’s intellectual property rights for any other purpose without the Seller’ prior written consent.
The Seller is hereby granted a non-exclusive, non-transferable, worldwide and perpetual license to use the Buyer’s intellectual property rights, but only to the extent necessary for the purposes of producing and supplying the Goods to Buyer. Under no circumstance will Seller be entitled to use the Buyer’s intellectual property rights for any other purpose without the Buyer’s prior written consent.
If Goods include software, and subject to Buyer’s compliance with the terms of this agreement and the Order, as well as any of Seller’s use restrictions applicable at any time for the relevant software, Seller grants to Buyer the non-exclusive and non-transferable license to use the software solely in support of Buyer’s internal business operations and in the quantities and subject to the use restrictions set out in Seller’s end user license terms. For any third party software, the third party’s license terms will govern its use, and with which Buyer shall fully comply.
17. LIMITATION OF LIABILITY
To the fullest extent allowed by law, Seller’s entire liability under this agreement shall not exceed the amounts actually paid by Buyer to Seller in respect of the Order that is the subject of the cause of action. If no Order is the subject of the cause of action, Seller’s entire and aggregate liability under this agreement shall be limited to what is actually paid by Buyer to Seller in the twelve months immediately preceding the date the cause of action arose.
Any software provided as Goods are provided to the Buyer “AS IS” and without warranty of any kind. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES RELATED TO SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, SELLER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, STATUTORY OR INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFIT OR PRODUCTION), ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT, WHETHER SUCH A CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH A DAMAGE. TO THE EXTENT THAT THIS LIMITATION OF LIABILITY CONFLICTS WITH ANY OTHER PROVISION(S) OF THIS AGREEMENT, SUCH PROVISION(S) WILL BE REGARDED AS AMENDED TO WHATEVER EXTENT REQUIRED TO MAKE SUCH PROVISION(S) CONSISTENT WITH THIS PROVISION.
18. ARBITRATION AND LAW
Any disputes, controversies or differences arising between the parties by virtue of this agreement that fail to be resolved amicably will be finally resolved through arbitration. The arbitration will take place in accordance with the rules of arbitration of the international chamber of commerce by one or more arbitrators appointed in accordance with the said Rules. Any disputes arising under this agreement shall be resolved in accordance with the laws of Norway. Place of arbitration shall be Oslo, Norway. Arbitration proceedings shall be carried out in English. Any proceedings and judgements of the arbitrators shall be confidential.
Each Party shall comply, in all material respects, with all laws, rules, regulations and orders applicable to them in relation to this agreement, including, but not limited to, environmental laws, anti-money laundering laws, anti-corruption laws, privacy laws, tax laws, competition laws, sanction regulations and export control regulations.
Buyer may not assign, sublicense or otherwise deal with its rights or obligations under this agreement, in whole or in part, to any third party without the prior written approval of Seller, not to be unreasonably withheld. The desire to assign, transfer or sublicense should be notified to Seller no less than 60 days before the desired assignment is to take place, whereupon Seller has 30 days to give his reply (refusal or approval). Any silence on Seller’s part is to be considered as a refusal.
20. UNENFORCEABLE PROVISIONS
Should any part of this agreement be held to be unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the remaining provisions of this agreement shall be fully effective, operative and enforceable. The invalid or unenforceable provision in question shall be replaced with a provision of equal effect renegotiated between the parties in good faith. Nevertheless if no agreement can be reached and it appears that the provision in question was one of fundamental importance to the existence of the agreement between the parties, the agreement can be terminated in writing, duly notified to the other party.
All provisions of this agreement which in order to give effect to their meaning need to survive its termination (howsoever occasioned) shall remain in full force and effect thereafter. Furthermore, the following clauses shall not merge on completion: 1: Preamble; 2: Definitions; 4: Credit Approval and Payment; 5: Taxes; 6: Shipping Terms and Risk of Loss; 7: Tooling; 9: Delivery Schedules and Delay; 10: Hardship and Force Majeure; 11: Cancellation; 12: Termination for Default; 14: Limited Warranty; 16: Intellectual Property and Indemnification; 17: Limitation of Liability; 18: Arbitration and Law; 19: Assignment; 20: Unenforceable Provisions; and 21: Survival.
Furthermore, these general terms as laid out in this document shall prevail over any terms and conditions referred to in any order or other document emanating from the buyer. Any failure or delay on Seller’s behalf in exercising his rights under any provision of this agreement shall not be construed as a waiver of those rights at any time now or in the future.