General purchasing terms for AKVA group ASA

- when the Seller, in whole or in part, shall install / assemble the product

1. INTRODUCTION
These general purchasing terms will apply to purchases by the AKVA group of Products when the Seller also, in whole or in part, shall be responsible for installation/assembly of the Product to the extent anything else has been otherwise agreed in writing between AKVA group and the seller of the product.
 
2. THE PARTIES
AKVA group ASA (Org no. 931 693 670) or a subsidiary of AKVA group ASA ("Buyer"); and

The company or person selling a Delivery to the Buyer and stated as Seller in the order of the Buyer ("Seller").
 
3. DEFINITIONS
Defined words or capitalized terms in these purchasing terms or another Contract document, shall be deemed to have the following meaning, unless otherwise stated in writing:

"Order" means the Buyer's written acceptance of an offer from the Seller or an order issued by the Buyer for the Delivery.

"Contract" means the contractual documents that together constitute the agreed terms and conditions for the purchase.

"Contract document" means any written document that states the agreed terms and conditions for the purchase.

"Contractual Amount" has the meaning that appears from article 5.1 and 5.2.

"The Delivery" means the Product and the result of the work performed by the Seller according to the Contract.

"Place of assembly" means the location at which the Product is finally installed and immediately adjacent areas that are necessary for the transport, unloading and storage of the Product.

"NL 17" means the general terms used by the Federation of Norwegian Industries for delivery of machinery and other mechanical, electrical and electronic equipment in and between Denmark, Finland, Norway and Sweden.

"NL 10" means the general terms issued by the Federation of Norwegian Industries in 2010 for the delivery of machinery with assembly, as well as other mechanical, electrical and electronic equipment in and between Denmark, Finland, Norway and Sweden, and which applies as the standard purchasing terms unless an express agreement, the Order or these general purchasing terms have different provisions.

"Takeover/Taken over" has the meaning that appears from article 12.2.

 "Product" means all physical objects, including equipment, materials, assembly materials and products, including documentation and software, that the Seller shall deliver or install according to the Contract.

"Subcontractor" means any entity that has entered a contract with the Seller related to the production or delivery of a Product, or which assists the Seller with the Delivery.
 
4. THE CONTRACT
If there is a conflict between the Contractual documents, the documents shall have precedence in the following order:
 
(i) any signed document of agreement between the Buyer and the Seller;
(ii) The Buyer’s written Order;
(iii) these general purchasing terms;
(iv) NLM 10;
(v) other documents, including e.g. technical documentation, that state terms and conditions for the purchase.

No party may assert other terms unless they are accepted in writing by the other party. This also applies to terms, draft agreements, etc. that the Seller may have submitted.

The Buyer is only bound by the Contract if there is a signed document of agreement, please refer to (i) above, or a written Order, please refer to (ii) above.
 
5. PRICE
5.1 The Buyer shall pay the prices stated in the Contract. All prices are considered fixed unless otherwise specifically agreed, and include VAT, all costs, taxes and fees. In aggregate described as the Contractual Amount. 

5.2 Assembly is deemed to be part of the Contractual Amount unless otherwise agreed in writing.
 
6. LAWS AND REGULATIONS 
6.1 The Seller is liable for ensuring that the Product and the Delivery is in compliance with laws, regulations and other public provisions applicable at the time of delivery of the finished installed Product in the country of the Place of assembly. NLM 10, article 35–38 regarding amendment work, does not apply to amendments implemented due to changes in laws, regulations and other public provisions.
 
7. ASSEMBLY, WORKING CONDITIONS AND TESTS DURING MANUFACTURE
7.1 The Seller is liable for ensuring that the assembly is executed under conditions that are in compliance with the applicable law provisions and rules for the working environment at the Place of assembly. All expenses incurred in relation to the Seller's personnel in connection with the assembly work, including wages, social benefits, food and shelter, changing rooms, etc., as well as compliance with collective agreements applying to the Seller's own personnel, shall be for the Seller's account.

7.2 The Seller shall carry all costs relate to tests performed at the place of Product manufacturing, including reasonable travel and lodging for the Buyer’s representatives in case of tests and inspections as mentioned in NLM 10, article 20.
 
8. PREPARATION FOR ASSEMBLY
8.1The provisions of NL 10, article 13 to 16 regarding "Preparation for assembly", apply to software with the following amendments:

a)NLM 10, article 13, second paragraph shall be replaced with: Any expense due to errors or deficiencies in drawings, descriptions or information that are mentioned in article 13, first paragraph, shall be for the Sellers account also if the deficiency becomes apparent after Takeover.

b) NLM 10, article 15, last paragraph shall be replaced with: The Seller shall, for his own account, ensure that materials, tools and equipment on or close to the Place of assembly are stored in such a way that it is protected against theft and damage.
 
9. TERMS OF PAYMENT
9.1 50% of the Contractual amount shall be invoiced when the Product arrives at the Place of assembly. The remainder of the Contractual amount shall be invoiced upon Takeover. This shall apply both when the assembly is part of the Contractual amount and when assembly has been agreed to be according to time and material spent. The Buyer shall pay the invoice within 45 days from the receipt of the correct invoice after execution of delivery. 

9.2 If assembly by account has been agreed, the Seller shall cover the costs mentioned in NLM 10, article 25.3 to 25.7. Unless otherwise specifically agreed, the expenses described in NLM 10, article 25.1, 25,2 and 25.8, are not covered. In case of fixed price assembly, NLM article 26 shall apply, but in such a way that value added tax or similar tax is included in the price. Please also refer to article 5.1.

9.3 If the Seller delivers earlier than agreed, the terms of payment shall apply from the agreed time of delivery.

9.4 In the case of overdue payment, interest may be charged pursuant to the Overdue Payment Act of 12/17/1976.

9.5 If prepayment for the whole or parts of the Delivery has been agreed, the Seller shall provide a bank guarantee in the form of an ordinary absolute guarantee from a bank or other financial institution acceptable to the Buyer. The guarantee shall cover the Buyer’s right to repayment of paid amounts if the Contract lapses before the Delivery is Taken over. The Buyer’s obligation to pay will only arise when the original such guarantee is presented.

9.6 The payment of the invoice does not mean that the Delivery is accepted by the Buyer or that the Buyer has waived his right to make a claim regarding the Delivery pursuant to the Contract.

10. THE ASSEMBLY WORK
10.1 The provisions of NL 10, article 29 to 33 regarding the "Assembly work", shall apply with the following amendments:
 
a)NLM 10, article 30 shall be replaced with: To the extent that the Buyer has cranes, lifting devices, scaffolding and equipment for transport available on the Place of assembly, these will be made available to the Seller free of charge. 

11. TAKEOVER TESTS
11.1 The provisions of NLM 10, article 39 to 42 regarding "Takeover tests", shall apply with the following amendments:
 
a)   NLM 10, article 42: The expression "as soon as possible" shall be replaced by "without undue delay". 
 
12. TAKEOVER / DELAYS
12.1 The Takeover shall take place at the agreed time. Partial takeover is not acceptable and will not be considered as partial execution of the Seller's obligation of delivery, unless agreed in writing.

12.2The Takeover will take place according to the rules following from NLM 10, article 43 to 44, with the following amendments:
 
a) NLM 10, article 43, third paragraph, regarding Buyer's confirmation of takeover shall not apply. 

b) NLM 10, article 43, fourth paragraph shall be replaced with: If the Delivery is delay, due to issues for which the Seller carries the risk, the Buyer may put the Delivery into service although it has not been taken over. The Seller's obligation to implement takeover tests will still apply. The Buyer’s usage must not prevent the Seller from completing the Delivery.  

c) NLM 10, article 44, second paragraph shall be replaced with: If it has been agreed that the Buyer shall receive the Product at the Place of assembly, the Buyer shall perform a visual check within a reasonable time, of whether there are transport damage and if there are notify the Seller of the damage within a reasonable time period.

12.3 If the Takeover does not take place at the agreed time, the Buyer may demand a daily penalty from the day the Takeover should have taken place. The daily penalty shall be 0.2% of the total Contractual amount for the relevant Contract as of the calendar day, limited upwards to 15%. If the Seller or someone for which he is responsible, has acted negligently, the Buyer may elect to demand compensation for his direct and indirect losses, instead of the daily penalty. 

12.4 If the delay gives the Buyer the right to terminate the Contract pursuant to NLM 10, article 50, the Buyer is entitled to compensation for direct and indirect losses incurred by the Buyer due to the delay, if the loss exceeds the maximum damages that the Buyer may claim pursuant to article 12.3.
 
13. SPECIFICATION AMENDMENTS / CANCELLATION
13.1 The Buyer may, at all times, demand changes of the specification of the Delivery.

13.2 Agreed amendments shall be confirmed in the form of the issue of a change order from the Buyer, which shall then be confirmed by the Seller. Sellers shall confirm the change order no later than 3 days after receipt. The Seller shall soonest, and not later than within 7 days, notify the Buyer in writing regarding the effects that amendments will have on the price, time of delivery and the technical specification. If the Seller fails to provide such notice by the time limit, the Seller forfeits his right to demand an amended price and/or time of delivery.

13.3 The change order shall be implemented immediately. The Seller is not entitled to withhold his performance due to disagreement regarding settlement of, or other consequences of, the amendments.

13.4 The Buyer may at all times cancel the Delivery, but in case of partial delivery, is obliged to pay for that which has already been delivered. For that which has been delivered, the Buyer shall only compensate for the Seller's documented, accrued and necessary costs, provided the Seller has made every reasonable effort to minimize them.
 
14. TITLE
14.1 The Product becomes the Buyer’s property as the Product is paid for. The same applies to any equipment belonging to the Product. If it has been agreed that parts of the purchase price will be paid after the Product has been delivered to the Buyer, the title passes to the Buyer upon the actual delivery of the Product.

14.2Any equipment delivered from the Buyer in connection with the manufacture of the Product, shall remain the Buyer's property. The Seller is obliged to keep the Buyer’s equipment physically separate from other equipment and materials until the equipment is incorporated in the Product.

14.3 All drawings, specifications and other technical documentation submitted by the Buyer to the Seller, remains the Buyer's property and must not be copied or entrusted to a third party without the written consent of the Buyer.
 
15. software
15.1 The provisions of NLM 10, article 6–8 regarding software, shall not apply. In its stead, article 18 below, and the provision of NL 17, article 5 to 7, shall apply with the following amendments:

a) NL 17, article 6, third sentence shall be replaced with: "If the vendor application is developed especially for the Buyer, the rights to the application shall be transferred to the Buyer." 

b) NL 17, article 7 shall be replaced with: "The Seller is obliged to make available the source code of the application to the Buyer if the Buyer so wishes. In addition, the Seller shall provide updated versions of the software to the Buyer."

16. LIABILITY FOR DEFICIENCIES
16.1 The Seller's Delivery shall be in accordance to what has been agreed. The Delivery shall be delivered with skilled execution in accordance with best practice in the market, and in compliance with applicable regulations and rules.

16.2 The Seller is liable for errors and deficiencies for a period of 24 months from the time when the Delivery was Taken over. If the Delivery has been out of service due to the deficiency, the warranty period shall be extended with the period corresponding to the time it has not been possible to use the Delivery for its intended purpose.

16.3 The Buyer loses his right to invoke the deficiency if no complaint has been raised within a reasonable time after the deficiency was discovered.

16.4 Those parts of the Delivery that are replaced/repaired, shall carry a renewed warranty for the same period as the original warranty period.

16.5 The Seller shall, for his own account, remedy the deficiency as soon as possible, either through repair that puts the Delivery in contractual condition, or by redelivery.

16.6 If the Seller fails to fulfill his obligation to remedy the deficiency, the Buyer may elect one or several of the following options:

a) withhold a necessary amount in order to ensure repair of the Delivery;
b) demand redelivery;
c) demand a price reduction, or
d) effect repair of the deficiency for the Sellers account, either himself or through the use of other vendors, provided however, that the Buyer has notified the Seller of this fact in writing.

16.7 The Buyer may, regardless of whether the deficiency is remedied, demand compensation for the direct and indirect loss incurred due to the deficiency of the Delivery.

16.8 If the Delivery has material deficiencies, the Buyer may cancel the purchase. The same applies if the deficiencies are not remedied within a reasonable period of time. In case of cancellation, the Buyer is entitled to damages in accordance with article 16.7.

16.9 The provisions of NLM 10, article 54 to 67, shall not apply.
 
17. INDEMNIFICATION AND LIABILITY PRIOR TO TAKEOVER
17.1 The Seller is obliged to indemnify the Buyer and his customers for any claim arising because of injury, illness, death, property damage inflicted on the Seller's employees or assets due to issues related the Delivery for which the Seller carries the risk.

17.2 The provision of the article also applies to damages the Delivery entails before Takeover, including damage to the Buyer’s or a third party's property. The liability also includes operational losses, loss of profits, other economic consequential damages and other indirect losses. The provision of NLM 10, article 53 and 68, shall not apply.
 
18.FORCE MAJEURE
18.1 If there occurs an obstacle outside the control of a party, which the party reasonably could not have been expected to consider a the time of agreement, or avoid or surmount the consequences thereof, the party shall not be deemed to have breached an obligation to the extent that it can be proved that it is due to such an obstacle.

18.2 The affected party shall immediately notify the other party of the force majeure situation. If he does not do so, he may not claim relief from his obligations. In case of force majeure, each party shall cover its own expenses caused by the force majeure situation. If one party is prevented from deliver his performance for more than 6 months due to force majeure, the other party may elect to cancel the Contract. In case of cancellation, the parties shall return any performances already received from the other party according to the Contract.
 
19. RIGHT OF INSPECTION
19.1 On request, the Buyer is entitled to receive such information from the Seller as the Buyer deems relevant, including satisfactory status reports, information regarding Subcontractor matters, etc.

19.2 The Seller shall permit inspection by the Buyer and his Client at his premises, and facilitate for such inspection to take place at the premises of Subcontractors when the Buyer deems it necessary. The conduct of inspections does not exempt the Seller from liability according to the Contract.
 
20. INTELLECTUAL PROPERTY RIGHTS
20.1 Commercial and technical information, including materials, drawings, documents and software applications, regardless of mode of storage, and copies thereof, and which the Buyer has made available to the Seller, shall remain the Buyer's property. The same applies to information developed by the Seller mainly on the basis of such information that the Buyer has made available to the Seller.

20.2 Inventions made by the Seller mainly on the basis of such information as mentioned in 15.1, shall also be deemed to be the Buyer’s property. The Buyer shall own inventions that are mainly based on technical information provided to the Seller by the Buyer. The Seller shall notify the Buyer of inventions that shall be the Buyer's property, and the Seller shall render the Buyer the necessary assistance to allow the Buyer to apply for patents for the inventions. The Buyer shall compensate the Seller for all reasonable expenses related to such patent applications, including reasonable remuneration to the Seller's employees if this is a result of applicable legislation.

20.3 The Seller shall not use the information mentioned in 20.1 and inventions mentioned in 20.2, for any other purpose than the execution of his contractual obligations according to this Contract. All documentation, materials, all software applications and copies shall be returned to the Buyer at the end of the Contract, unless otherwise agreed in writing.

20.4 The Seller shall grant the Buyer an irrevocable, royalty free, non-exclusive right to use all inventions that are, or comes under the Seller's control to the extent this is necessary for the production, operation, maintenance and repair to the Delivery.

20.5 The Seller is liable for ensuring that the Delivery and its application will not infringe third party patents or other rights protection and shall indemnify the Buyer for claims that may arise due to infringement of third party patents, copyright, intellectual property law or other protective rules. The Seller is only liable if the Buyer has not, within a reasonable time, notified the Seller of any claim received by the Buyer.
 
21. BUYER'S RIGHTS VERSUS SELLER'S SUBCONTRACTORS
21.1 The Seller is obliged to ensure that the Buyer’s rights according to these general purchasing terms, may be enforced versus the Seller's Subcontractors.
 
22.UN GLOBAL COMPACT
22.1 The Seller is obliged to comply with the 10 applicable principles following from the UN Global Compact.
 
23. disputes
23.1 These purchasing terms shall be subject to and be construed according to Norwegian Law.

23.2 Disputes that may arise as a result of or in connection with the Contract, and which are not amicably resolved, shall be settled before the ordinary courts of the Buyer’s home country.

AKVA Group ASA, November 2018 rev00