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22. mars 2018

 

GENERAL TERMS AND CONDITIONS FOR DELIVERIES OF GOODS AND SERVICES FROM GOLTENS OSLO AS

 

 

 

 

 

These terms shall prevail over any terms and conditions in the Customer's order - even if the Customer's order explicitly refers to their own terms of purchase, or states that purchase requires use of the Customer's own terms, or similar.

 

 

 

 

 

1. PREAMBLE

 

 

 

1.1 The following provisions govern Goltens Oslo AS´ (Company) terms and conditions for sale and deliveries of goods/items (machinery, apparatus, materials, documentation, software and other products supplied by the Company), engineering services, and/or any other kind of services, performed both at the Company's site or at a site instructed by the Customer, on shore or offshore, hereinafter both together and individually, referred to as the Works.

 

1.2 Unless specifically agreed, the Company has no design – or implementation - responsibility for the Works.

 

 

 

2. DESCRIPTION AND TECHNICAL DATA

 

 

 

2.1 No general statement from the Company regarding weights, dimensions, capacity, prices, technical and other data as referred to in catalogues, prospects, circulars, advertisements, display material, price lists a.s.f., shall be construed as warranted values of measurements or applicable feasibilities.

 

2.2 Such material shall consequently be binding only to the extent that they are explicitly included in the agreement.

 

2.3 The Customer is not entitled to receive documents such as, however not limited to, engineering documents that the Company procures as basis for the preparation of offers and/or documentation for own use. All drawings and technical documents, including, however not limited to, scanning documentation and likewise, that are submitted to the Customer remain the property of the Company unless otherwise specifically agreed in writing.

 

 

 

2.4 To the extent such documents are submitted to the Customer, the Customer is prohibited from using them for other purposes than for the fulfillment of the contract, and shall not; be copied, reproduced, shared with, or brought to - the notice of any third party without the prior written consent of the Company.

 

 

 

3. TIME OF DELIVERY

 

 

 

3.1 All scheduled dates of delivery of the Works informed of in an offer or in a preliminary or conditional order confirmation, or likewise, are indicative, and may not be considered binding.

 

 

 

3.2 A scheduled date of delivery in a final order confirmation or in a Contract, is automatically extended equivalent with the time of delay caused by the Customer. The Company can under no circumstances be held responsible for consequences for such delay, wether or not such consequences were foreseeable for either party or not.

 

3.3 Unless otherwise agreed, the Company does not undertake any consequential liability in respect of delayed delivery.

 

3.4 A delay does not give the Customer any right to cancel the contract or claim any compensation for such delay.

 

 

 

4 FORCE MAJEURE

 

 

 

4.1 Irrespective of whether performance obligations has otherwise occurred, - ref the above clause - either party shall be entitled to suspend his performance and obligations under the contract to the extent that such performance is impeded or made unreasonable onerous by Force Majeure, meaning circumstances as industrial disputes, or other circumstances that are beyond the control of the parties, such as prevented or delayed deliveries due to circumstances or events which the Company cannot reasonably be expected to have taken into account on making the contract, e.g., however not limited to, war or warlike conditions, mobilization; import or export embargoes; civil commotions, strikes, lock-outs or enforced reduction of working hours, natural disasters, floods, ice obstacles, severe weather, or other events beyond the control of the Company.

 

The same shall apply in case of, however not limited to, delays in the delivery of parts, materials, auxiliary materials or in the performances of sub-contractors; transport hindrances; insufficient manpower available of the Company or its sub-contractors;

 

4.2 If circumstances arise which, in the opinion of the Company, will cause a delay in delivery, the Company shall be obliged

 

to notify the Customer of such circumstances as soon as possible, and if reasonable possible, also state the probable duration of the delay.

 

 

 

5. VARIATION ORDERS

 

 

 

5.1 If the parties, after having contracted the Works, agree on variations, the delivery time shall be extended equivalent to the period of time required for the preparation and execution of the variations.

 

 

 

5.2 Although an order/contract or likewise requires that variations in the agreed Works, or additional Works, shall be agreed upon in writing by authorized personnel at the Customer, the Company is entitled to accept order/s from unauthorized personnel if the Work takes place at a site of the Customer (offshore rig, ship, premises) provided the order of variation/additional is related to the agreed Work – and invoice as if the order were received by authorized personnel.

 

 

 

6. PRICE

 

 

 

6.1 Unless a definite price for the Works has been agreed upon, the price shall be calculated in accordance with the Company´s current price list, and if such list does not exist, in accordance with the usual practice of the Company.

 

6.2 Payment made by the Company to sub-contractors shall be charged to the Customer. The Company is entitled to add a margin to cover risk and handling.

 

 

 

7. CANCELLATION

 

 

 

7.1 The customer may cancel contracted Work according to the following conditions:

 

 

 

7.2 The Customer is not entitled to cancel any purchase of items.

 

7.3 If agreed Work contains supplies of items, the Customer is obliged to take ownership of such items, and to pay the full price for these,

 

7.4 The Customer shall compensate the Company for all work and all costs occurred prior to the written notice of cancellation, hereunder, however not limited to, costs to be paid to sub-suppliers.

 

7.5 The Company is further entitled to a consideration equivalent to 20 % of the original contract value, which is to be invoiced upon the Company receiving notice of cancellation.

 

 

 

8. PASSING OF RISK

 

 

 

8.1 Unless otherwise agreed in writing, all risk of loss or damage to the goods shall pass to the Customer in accordance with the agreed trade term, which shall be construed in accordance with the INCOTERMS in force at the date of the contract. If no trade term is agreed, delivery of the goods shall be "ex works".

 

8.2 Unless covered through the above, all risk of loss of or damage to the goods, shall pass to the Customer on taking-over the Works.

 

 

 

9. TAKING-OVER TESTS

 

 

 

9.1 When an installation outside the Company´s premises is completed, and prior to the Works are taken over by the Customer, the Company shall notify the Customer that the Works are ready for taking–over, and, to the extent it is technical feasible, summon the responsible representative on the site to a take-over test in a practical, however documentable, way.

 

9.2 The notice to the take-over test shall be not less than 24 hours in prior unless otherwise agreed, or accepted by the representative at the site.

 

9.3 The Customer shall provide, free of charge, power/energy, lubrication, raw materials and all other materials necessary to perform a test. The Customer shall pay for man-hours related to the test unless otherwise agreed.

 

 

 

9.4 The Company shall prepare a report of the taking-over test that shall be signed by both the Company and the Customer´s representative. If the taking-over test shows that the Works are not in accordance with the contract, the Company shall, without delay, remedy the deficiencies. The Customer may demand new tests to be performed under the same procedures until it is agreed

 

that the Works are in accordance to the contract. To the extent the Customer´s representative deems the deviation significant, he shall express and justify such opinion in the report prior to signing it.

 

9.5 If the Customer's representative fails to appear for the take-over test, the Company shall perform the test, prepare the

 

report and sign it. If such report shows that the Works are in accordance with the contract, the test shall be deemed to be in accordance with the contract.

 

9.6 If however the Representative of the Customer has a valid reason for not appear at the test, a complaint must be made in writing at the latest within 8 days after he is summoned to the taking-over test.

 

9.7 To the extent it is not technical feasible to perform a taking-over test, this test shall be replaced by form/s signed by the Customer's representative "on site" through which it is confirmed that the measurements details of the Works comply with the agreed Works.

 

9.8 The Company shall, upon prior written request from the Customer, and to the Customer's expense, provided the request is forwarded in due time, make available for the Customer tools to make the measurements the Customer deems necessary to sign the form/s.

 

9.9 To the extent, no "on site" representative from the Customer is available for signing the form/s within a reasonable time after summoning, the forms shall be signed by the Company's representative "on site", having the same effect as if it were signed by the Customer.

 

 

 

10. TAKING-OVER

 

 

 

10.1 The Customer is not entitled to use the Woks in part or in whole before taking-over.

 

10.2 Taking-over of the Works shall be considered to take place:

 

A at the signing of the report from the take-over test unless the report shows that the Customer´s representative has stated and justified in the report that the deviation from the contract is significant;

 

B at the signing of the report from the take-over test by the Company if the representative fails to appear for the take-over test;

 

C at the signing of the measurement form/s described in clause 8 by either the Customer's or the Company's representative "on site",

 

D upon the Customer taking the Work, or parts thereof, into use, either in its business, for the purpose of adjusting or testing or by any other cause, without the prior written consent by the Company.

 

 

 

11. RETENTION OF TITLE

 

 

 

11.1 Supplied goods remain the property of the Company until the Company has been paid in full, including payment for installation.

 

 

 

12. LIABILITY FOR DEFECTS

 

 

 

12.1 The Company shall remedy Work that:

 

  1. is not in accordance with confirmed/agreed specification,

  2. is un-functional due to design error – provided the Company has explicitly undertaken responsibility for design.

 

 

 

12.2 The Company's liability is to supply the Work according to specifications provided by the Customer. Unless specifically agreed in writing, the Company has no warranty for fitness of the Work for a particular purpose.

 

 

 

12.3 The Company is not liable for;

 

a defects arising out of materials provided by, or a design stipulated or provided by, the Customer,

 

b defects caused by improper use of the Work,

 

c defects that the Customer has not notified the Company of the defect in writing (e-mail) within at the latest 1 month after the defect is discovered, or should have been discovered.

 

d defect that appears more than three months after Take-over pursuant to clause 9 unless otherwise agreed in writing

 

e defects that are caused by faulty maintenance.

 

f defects caused by external influence.

 

 

 

12.4 The Company’s liability shall be limited to repairing or replacing the defective part or parts.

 

12.5 To the extent repairs have to be performed outside the Company's premises - regardless where the Work was taken over by the Customer, the Customer is obligated to cover all the Company's expenses related to repairs, such as, however not limited to, travel costs for personnel and freight cost of tools and materials, and insurances.

 

12.6 If repairs have to be performed at the Company's premise, or at any other site, the Customer shall cover all costs of dismantling and bringing the items in question to such site.

 

 

 

12.7 Unless as an undisputable consequence of gross negligence, the Company is consequently not liable for any consequential loss, direct or indirect, of a defect, neither with respect to a consequential pause in production or consequential damage on any machinery, unless otherwise agreed in writing. The liability in case of gross negligence is however always limited to the invoice value of the Work.

 

12.8 The Customer shall hold the Company harmless in respect of all kind of liability, including possible product liability, the Work may occur on third party's person or property.

 

12.9 To the extent Works or repairs shall be executed outside the Company's premise, and it is agreed that the transport of materials and/or tools required for the execution is the responsibility of the Customer, the Customer is obliged to make every effort to prevent shipping delays. Unless such delays are caused by reasons beyond the Customer's control, the Company is entitled to invoice the Customer with an amount equivalent to 0,5 % of the value of the Work per week day that the Customer causes the delay, however limited to the replacement cost of the tools.

 

 

 

13. PAYMENT

 

 

 

13.1 Invoicing and payment shall be made in accordance with the quotation and/or order confirmation or as otherwise later agreed in writing.

 

13.2 Payment shall be made within 30 days of the date of the invoice, unless other payment terms are agreed agreed upon.

 

13.3 In case of payment default by the Customer the Company is entitled to, without responsibility of any kind, to refrain from executing and/or completing the Work, hold back items, and/or to execute all other activity he deems required until due payment is made.

 

13.4 If the Work includes travel and freight expenses, and supplies from sub-suppliers, the Company is entitled to claim payment to cover such expenses in prior to any activity regarding the Work.

 

13.5 If payment is not made when the invoice is due, the Customer shall pay penalty interest from due date until payment is made.

 

13.6 The Customer is not entitled to set off any claim against invoices from the Company that are not agreed with, or accepted by, the Company unless the counterclaim is settled by enforceable judgment.

 

 

 

14. CHOISE OF LAW AND COURT OF VENUE

 

 

 

14.1 These terms and conditions shall be construed and interpreted under Norwegian Law, and Court of Venue in case of a dispute shall be Oslo, Norway.

 

14.2 Prior to a party initiates litigation in court, the plaintiff to be shall notify the other party of his intention, and invite the

 

opposite party to meet to discuss the matter within four weeks – and he is obliged to meet at the other party's premises if the other party invites to a second meeting within three weeks thereafter.

 

If the party to be sued ignores the invitation to a meeting, the plaintiff to be may initiate litigation six weeks after he has invited the other party to a meeting.

 

 

 

14.3 The deadlines set forth herein are additional to possible terms and deadlines for initiating litigation set forth by the law.

 

14.4 If the disagreement is not solved amicable within the said deadlines, the dispute shall be solved through the Norwegian Law on arbitration.

 

14.5 The verdict of the arbitration court is enforceable in any jurisdiction chosen by the party having a claim according to the verdict.