Terms and Conditions
1. Orders.
This order is an offer by SUNCHILL AS to the parties to whom the order is addressed (“Seller”) to purchase the goods and/or services (“Products”) designated on the face of this order or attached writing and shall be the complete and exclusive agreement between SUNCHILL AS and Seller for such Products. The sole manner of acceptance shall be by performance. These Standard Terms and Conditions of Purchase (the “Terms and Conditions”) supersede all prior representations, quotations, proposals, orders, agreements or understandings with the exception of fully executed supply or pricing agreements. By accepting SUNCHILL AS’s purchase order, Seller has agreed to these Terms and Conditions in their entirety (the "Contract"). Confirmation orders, invoices or similar documents submitted by Seller that modify, add to, or are inconsistent with these Terms and Conditions shall not constitute a counter-offer and are deemed to be material alterations of SUNCHILL AS’s purchase order and are expressly rejected and of no force or effect. In no event will SUNCHILL AS be deemed to have in any way changed, enlarged or modified its liabilities or obligations as fixed by these Terms and Conditions except by a written amendment executed by an officer of SUNCHILL AS.
No purchase order is valid unless:
(i) It is placed on SUNCHILL AS’s official purchase order form, and
(ii) SUNCHILL AS has not withdrawn the order.
2. Prices.
All prices are in NOK unless otherwise noted. Payment may be made within the number of days agreed and stated on SUNCHILL AS's Purchase Order, after receipt by SUNCHILL AS of the ordered and conforming Products. All prices are quoted DDP, as described in Incoterms 2015, unless otherwise noted by SUNCHILL AS. Prices quoted by Seller shall include sales, excise, municipal, state or any other government taxes. All taxes and other governmental charges upon the production, manufacture, distribution, sale or use of the Products, to the extent required or not forbidden by law to be paid by Seller, shall be paid by Seller.
3. Volume projections and quantity
Seller acknowledges that any estimates, forecasts or projections of future anticipated volume or quantity requirements for Products provided by SUNCHILL AS are provided for information purposes only and may change over time. If quantities and delivery schedules are not specified in the Contract, they will be as reasonably determined by SUNCHILL AS and stated in SUNCHILL AS’s firm releases issued to Seller from time to time.
4. Shipping
Seller shall use the carrier designated by SUNCHILL AS. Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Products. Any additional shipping expenses as a result of Seller’s backorders or shipments of a lesser quantity than specified shall be paid by Seller unless SUNCHILL AS authorizes such shipping expenses in writing. The Products shall be properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport. Shipping documents, including Seller’s invoice, must accompany each shipment and be transmitted to the freight forwarder in a timely manner. Seller shall bear all risk of loss until Products are delivered to SUNCHILL AS (including off-loading and stacking) and accepted. SUNCHILL AS shall not be obligated to return to Seller any packaging or packaging materials for the Products, whether or not any Products are accepted by SUNCHILL AS.
5. Time
Seller shall deliver the Products at the time specified in the Contract which shall be during normal business hours. SUNCHILL AS, without penalty or liability to Seller, shall have the right to reschedule or postpone any delivery of Products. Time shall be of the essence of the Contract. Seller understands and acknowledges that late or nonconforming delivery will obligate Seller to pay direct, incidental and consequential damages to SUNCHILL AS. If for any reason SUNCHILL AS is unable to accept delivery of the Products at the time when they are due for delivery Seller shall, if its storage facilities permit, store the Products in a secure manner until SUNCHILL AS is ready to accept delivery and SUNCHILL AS shall pay Seller’s reasonable charges for storage.
6. Cancellation
SUNCHILL AS may cancel any purchase order upon written notice to Seller. In the event of such cancellation, SUNCHILL AS is responsible to Seller only for the cost of any finished goods or work in process that corresponds to SUNCHILL AS’s purchase order.
Termination of the Contract for any reason shall be without prejudice to rights of SUNCHILL AS accrued prior to termination.
7. On-site work
In the event that Seller or its representatives are performing installation or other on-site services related to the purchase of any goods by SUNCHILL AS, then SUNCHILL AS may issue additional specifications and conditions to such on-site services. Seller shall indemnify SUNCHILL AS and hold it harmless against all claims or losses resulting from any personal injury or property damage claim resulting from any work performed by Seller’s employees, agents or subcontractors at SUNCHILL AS’s premises.
8. Warranty Seller expressly warrants to SUNCHILL AS that all Products or goods sold shall:
(i)Conform as to quantity, quality and description with the specifications contained in the Contract;
(ii)Be free of all defects in design, materials and workmanship;
(iii) Be equal in all respects to the samples, patterns, drawings, or specification provided or given by either party;
(iv) Be capable to any standard or performance specified in the Contract;
(v) Comply with all statutory requirements and regulations relating to the Products;
(vi) If the purpose for which they are required is indicated in the Contract or known by Seller, either expressly or by implication, be fit for that purpose.
The warranties under this section will be effective for the longer of: (a) the period provided by applicable law where the Products are used; or (b) the warranty period provided by SUNCHILL AS to its customers.
(vii) In addition to the remedies available to SUNCHILL AS through this Contract or applicable law, the Seller is liable to pay for all associated costs incurred by SUNCHILL AS due to the supply of non-compliant Products.
Seller shall repair any defects during the applicable warranty period at Seller’s cost and expense (including, without limitation, all parts, labor and transportation costs) immediately after being notified of any such defect by SUNCHILL AS. All such warranties shall survive any delivery, inspection, acceptance or payment by SUNCHILL AS.
9. Inspection and testing
(i) Before delivering the Products, Seller shall carefully inspect and test them for compliance with specifications.
(ii) Seller shall also at the request of SUNCHILL AS supply to SUNCHILL AS a copy of Seller’s test sheets and/or inspection reports certified by Seller to be a true copy. In such instances, Seller shall retain the original documents for a period of ten (10) years.
(iii) SUNCHILL AS or its Customer or representatives shall be entitled to inspect and test the Products during manufacture, processing or storage. If this right is exercised, Seller shall provide or shall procure the provision of all such facilities as may reasonably be required for such inspections and tests. SUNCHILL AS shall have five (5) years from receipt of Products from Seller to bring any claim for defective or non-conforming goods.
10. Rejection
(i) SUNCHILL AS may reject or revoke acceptance of the Products if Seller fails to comply with its obligations. SUNCHILL AS reserves the right to inspect, reject and/or revoke regardless of any prior payment for the Products or the placement of the Products into use for all defects that were not actually discovered by SUNCHILL AS prior to payment or use.
(ii) SUNCHILL AS at its sole option may return the rejected or non-conforming Products to Seller at Seller’s risk and expense. In such case, Seller shall within a reasonable time replace such rejected Products with conforming Products. SUNCHILL AS may alternatively require Seller to remove, repair and/or replace the defective Products or parts thereof on site without cost to SUNCHILL AS.
(iii) Seller shall return to SUNCHILL AS any amounts paid to Seller for rejected or non-conforming Products that have been returned to Seller but not replaced.
(iv) Where SUNCHILL AS agrees to accept delivery of the Products by installment, the Contract will be construed as a single contract. Nevertheless failure by Seller to deliver any one installment shall be a material breach of the whole Contract.
(v) The above provisions are in addition to and not in substitution for any other remedies that SUNCHILL AS may have under applicable law.
11. Care and return of patterns, dies, etc
(i) All patterns, dies, molds, or any other tooling and any materials supplied by SUNCHILL AS or prepared or obtained by Seller for and at the sole cost of SUNCHILL AS, shall be and remain the property of SUNCHILL AS.
(ii) Seller shall maintain all such items in good order and condition and insure them against all risks while in Seller’s custody and on completion of the order, or as otherwise directed by SUNCHILL AS, shall return them to SUNCHILL AS in good order and condition.
(iii) Seller must have, or put in place systems to ensure that SUNCHILL AS’s property is clearly identifiable and where possible must be physically marked as such.
12. Safety and statutory requirements
(i) Seller warrants that the design, construction and quality of the Products to be supplied to SUNCHILL AS comply in all respects with all safety and other requirements by any statute, statutory rule or order, or other instrument having the force of law, which may be in force at the time when the same are supplied. Seller shall comply with all environmental laws and regulations that apply to the Products supplied by Seller to SUNCHILL AS. Seller agrees to provide SUNCHILL AS with Material Safety Data Sheets and Certificate of Analysis when applicable.
Seller shall give SUNCHILL AS prior written notice of: (a) any delivery of the Products or items accompanying the Products having toxic or other hazards to the safety or health of persons or property and shall provide full details of such hazards and of all precautions which should be taken by SUNCHILL AS in respect of the delivery, storage, handling, installation and use of the Products or items and provide SUNCHILL AS with all information relating to the properties of the Products or items to enable SUNCHILL AS to comply with all relevant legislation relating to the Products or items and/or such hazards; and (b) any delivery of Products which are perishable or of limited lifespan and of any circumstances which may adversely affect the lifespan of such Products.
13. Infringement of patent, trademark and other rights
Seller shall indemnify SUNCHILL AS against all actions, claims and demands, costs, charges and expenses arising from and incurred by reason of any infringement or alleged infringement of any intellectual property rights including patent, design patents, trademarks or copyrights by the use or sale of any Products supplied by Seller.
14. Use of information
All designs, drawings, specifications and information supplied by SUNCHILL AS in connection with any order are confidential. All such designs, drawings, specifications and information and any copies thereof must be returned to SUNCHILL AS on completion of the order.
15. Confidentiality
The Seller hereby acknowledges that all or any information given to it by SUNCHILL AS in the course of negotiating and executing the order relating to the trade, business, customers and marketing strategies of SUNCHILL AS or to SUNCHILL AS´ current or future products or the design, composition, manufacture and specification thereof has been given on a confidentially basis and solely for the purposes of the order. The Seller hereby warrants that it has not disclosed such information to any third party and undertakes that it will not hereafter disclose or use same and undertakes if SUNCHILL AS reasonably so requires to obtain confidentiality undertakings from individual employees in a form previously agreed with SUNCHILL AS.
16. Assignment, waiver, entire agreement, severability
Neither party shall assign or delegate any of its rights or obligations under this Contract without the prior written consent of the other party, which such consent shall not be unreasonably withheld, except that either party may assign or delegate its rights or obligations hereunder to an Affiliate without the other party’s consent. As used herein, the term “Affiliate” shall mean any entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with the entity specified. SUNCHILL AS may terminate this Contract upon written notice to Seller without any further liability to Seller if there is a change of control of Seller. The Contract constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior oral or written representations or agreements by the parties with respect to the subject matter of this Contract. Except as authorized in Section 1, neither the Contract nor any of its provisions may be modified, amended or waived, whether orally, through the parties’ course of performance, course of dealing or course of conduct, or manifested in any other way, unless in writing and signed by authorized representatives of both parties. It is the express intention of the parties that such requirement for written modifications, amendments or waivers be strictly enforced notwithstanding judicial president or statutory provisions to the contrary. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable. The failure of SUNCHILL AS to insist in any one or more instances, upon the performance of the Contract or the failure of SUNCHILL AS to exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions or rights and shall not effect SUNCHILL AS’s right to insist on strict performance and compliance with regard to any future performance of the Contract.
17. Independent contractor status
SUNCHILL AS and Seller are independent contractors. Nothing in this contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
18. Default, bankruptcy or liquidation
If Seller commits any breach of the terms and conditions of the order, becomes insolvent, is subject to the Bankruptcy courts, enters into an arrangement with its creditors, is put into liquidation or has a receiver appointed, SUNCHILL AS may, without prejudice to any other rights which may have accrued or which shall accrue to it:
(i) terminate the order simply by notice in writing to Seller; or
(ii) give any such receiver or liquidator or other person the option of carrying out the order on such terms as SUNCHILL AS may specify.
19. Indemnity and insurance
Seller shall indemnify SUNCHILL AS against all damage or injury to any person or to any property (including the goods themselves) and against all actions, suits, claims, demands, costs, charges or expenses arising out of the Products supplied by Seller.
Before beginning performance of this Contract, Seller shall furnish insurance certificates as directed by SUNCHILL AS, satisfactory in form and substance to SUNCHILL AS upon request.
20. Force Majeure
Neither party shall be liable to the other party for delay in scheduled delivery or failure in performance caused by acts beyond such party’s reasonable control without fault or negligence of such party, such as, without limitation, flood, war, embargo, acts of terrorism, riot or the intervention of any governmental authority (“Event of Force Majeure”), provided such party presents a claim and notice in writing to the other party within twenty-four (24) hours of such party becoming aware that an Event of Force Majeure may delay or interrupt performance hereunder. If Seller is unable to perform for any reason, SUNCHILL AS may purchase Products from other sources and reduce its purchases from Seller accordingly without liability to Seller.
21. Governing law and dispute resolutionChoice of law
The Contract and all transactions shall be governed by and construed in accordance with the Norwegian law and the parties hereto irrevocably submit to the exclusive jurisdiction of the Norwegian courts. The venue shall be Stavanger Tingrett, address : Bergelandsgata 10, 4012 STAVANGER, NORWAY