Standard Terms of Sales

FELL TECHNOLOGY AS AND SUBSIDIARIES ("FTAS") AS (“SELLER”)

TERMS AND CONDITIONS OF SALE OF PRODUCTS AND SERVICES TO B2B CUSTOMERS.

FOR B2C ECOM TERMS AND CONDITIONS, SEE SEPARATE TERMS AND CONDITIONS OF SALE OF PRODUCTS AND SERVICES IN EACH ECOM WEBISTE RESPECTIVELY

NOTICE: Sale of any Products or Services is expressly conditioned on Buyer’s assent to these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly objected to and will not be binding upon Seller unless agreed to in writing by Seller; provided however, that no pre-printed facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative. Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions, or the Contract shall not be binding on either party. Any order to perform work and Seller’s performance of work shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation or Contract, any quotation by Seller shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s acceptance.

1.0           WARRANTIES

1.1 Seller warrants to Buyer that, unless otherwise stated by the Seller, any products and services furnished hereunder will be free from defects in material, workmanship and title, under normal use and services and quality specified in Seller's quotation. This warranty shall apply only to failure to meet said warranties (excluding any defects in title) which appear within twenty-four (24) months from date of shipment from factory for FTAS products unless other warranty terms are agreed between Seller and Buyer in writing or Seller has defined and announced in writing different warranty terms in different countries or on different products and product groups. If a different warranty term is defined and announced in writing on a Seller webiste, support forum, user/installation manual or other written media, this media takes precedence over the warranty terms herein.

1.2 The conditions of any tests shall be mutually agreed upon and Seller shall be notified of, and may be represented at, all tests that may be made. The warranties and remedies set forth herein are conditioned upon (a) proper storage, installation, use and maintenance, and conformance with any applicable recommendations of Seller and (b) Buyer promptly notifying Seller of any defects and, if required, promptly making the product available for correction.

1.3 If any products or service fails to meet the foregoing warranties, (except title), Seller shall, after Buyer delivery to Seller's plant, correct any such failures, at Seller's option by (i) repairing any defective or damage part or parts of the products, or (ii) making available any necessary repaired or replacement parts or necessary service which will be performed during normal working hours on a straight time basis. Repaired or replaced products will be returned FCA (INCOTERMS 2020) Seller's factory. Where a failure cannot be corrected by Seller's reasonable efforts, the parties will negotiate on an equitable adjustment in price.

1.4 This Paragraph sets forth the exclusive remedies for claim (except title) based on defect, failure or nonconformity of the products or services supplied, whether claim is in contract or tort (including negligence) or otherwise and however instituted. Upon the expiration of this warranty, all such liability shall terminate. Except as set forth in "Patents" the foregoing warranties are exclusive and in lieu of all other warranties or conditions whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PUPROSE SHALL APPLY. Seller does not warrant any products or services of others, which Buyer has designated.

1.5 Notwithstanding anything else in these Terms and Conditions to the contrary, the Seller makes no warranties, express or implied, with respect to any software developed by the Seller on behalf of the Buyer, and hereby expressly disclaims all such warranties, to the extent permitted by law, in cases where:

(i) Any errors, defects, malfunctions, or other issues (collectively, "Issues") are caused, directly or indirectly, by the Buyer's use of the Software, including but not limited to use that is inconsistent with the documentation, instructions, or guidelines provided by the Seller;

(ii) Any Issues arise from the Buyer's alteration or modification of the Software without the prior written consent of the Seller;

(iii) Any Issues are attributable to the integration of the Software with other software or systems by the Buyer, without the Seller's express written approval; or

(iv) Any Issues result from the Seller's adherence to and implementation of customer specifications, functional requirements, or other instructions (collectively, "Specifications") provided by the Buyer for software development. It is understood and agreed that the Seller's responsibility is limited to delivering software that is compliant with the Specifications provided by the Buyer, and the Seller does not warrant the adequacy, accuracy, or completeness of such Specifications.

1.6 Effective twelve (12) weeks from the date of delivery of the software to the Buyer, the Buyer shall assume full ownership and responsibility for the software, including all existing and future defects, bugs, or malfunctions of any kind (collectively, "Issues"). It is the Buyer's responsibility to thoroughly investigate, test, and validate the software within this time period. The Seller will provide support for a period of twenty-four (24) weeks from the date of delivery for any Issues arising in the software that were not known or discoverable by the Buyer at the time of delivery, notwithstanding reasonable efforts by the Buyer, excluding Issues arising due to the causes described in Clause 1.5. The Seller agrees to repair or replace, at its discretion, the software or any parts thereof which have proven defective, under normal use and service and as a result of faulty design, materials or workmanship not attributable to the Buyer. However, after the said twenty-four (24) weeks period, the Seller shall have no further obligation or liability, whether in contract, tort, or otherwise, for any Issues with the software. This Clause 1.6 sets forth a reasonable time frame for the Buyer to detect and notify the Seller of any software Issues that were not discernible at the time of delivery, while also setting a fair cut-off point for the Seller's warranty obligations. The above-stated remedies represent the Buyer's sole and exclusive remedies for any breach of warranty, and this Clause 1.6 does not limit or negate any other provisions of these Terms and Conditions.

This Software Warranty Exclusion Clause shall not limit or affect any other warranty disclaimers or limitations on liability contained in these Terms and Conditions.

2.0           PRICES

2.1 Unless otherwise stated, prices are in US dollars FCA Seller's factory (INCOTERMS 2020). All prices are subject to change without notice.

3.0           PAYMENTS

3.1 Terms of payment shall be for one hundred (100%) per cent of invoice for each shipment, payment due net thirty (30) days upon presentation by the Seller of its invoices and evidence of readiness to ship to the Buyer.

3.2 If the Buyer delays shipments, Seller reserves the right to bill Buyer for any payments tied to shipments that shall become due on the date when the Seller is ready to make shipment. If the cost to the Seller of production, delivery, erection, or installation of such products is increased by reason of delay caused by the Buyer, the Buyer shall pay such additional expense incurred by the Seller.

3.3 At the request of the Seller, payments shall be made by an irrevocable Letter of Credit established by the Buyer in favor of and acceptable to the Seller and confirmed by a Canadian bank satisfactory to the Seller.

3.4 If Buyer fails to fulfill any conditions of its payment obligations or if Buyer's financial condition at any time does not justify continuance of the work to be performed by Seller hereunder on the agreed terms of payment, Seller may require full or partial payment in advance before proceeding with any further activities related to the products or service to be supplied. Upon the occurrence of said non-fulfillment or financial condition, the Buyer shall compensate the Seller for any additional related costs and shall grant an extension of time for any related delays equal to said delays.

3.5 In the event of Buyer's bankruptcy or insolvency or in the event any proceeding is bought against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Seller shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its proper cancellation charges. Seller's rights under this Paragraph are in addition to all rights available to it at law or in equity.

3.6 Interest at the rate of 1.5% per month (18%per annum) shall be payable by the Buyer from and after the date upon which any, and all, payments are due and payable by the Buyer to the Seller.

4.0           PATENTS

4.1 The Seller shall defend any suit or proceeding brought against the Buyer so far as based on claim that any product, or any part thereof, furnished under this contract and manufactured by the Seller, constitutes an infringement of any patent of EU, Canada or the United States, if notified promptly in writing and given authority, information and assistance (at the Seller's expense) for the defense of same, and the Seller shall pay all damages and costs awarded therein by a competent court against the Buyer. In case said product, or any part thereof, is in such suit held to constitute an infringement and the use of said product or part is enjoined, the Seller shall, at its own expense and at its option, either procure for the Buyer the right to continue using said product or part, or replace same with non-infringing product, or modify it so it becomes non-infringing or remove said product and refund the purchase price and the transportation and installation costs thereof.

4.2 The preceding paragraph shall not apply to and the Seller shall assume no liability for (i) any products, or any part thereof, manufactured to Buyer's design or, (ii) circumstances where the patent infringement claim arises from using the products in combination with the Buyer's equipment or process.

4.3 In respect of any product not manufactured by the Seller, the patent infringement protection offered by the manufacturer thereof shall apply.

4.4 The right and obligations of the parties with respect to Patents or any other intellectual property rights are solely and exclusively as stated herein and the foregoing states the entire liability of the Seller for infringement of Patents or any other intellectual property rights.

5.0           DELIVERY, TITLE AND RISK

5.1 Seller shall, unless otherwise agreed, deliver the products FCA Seller's factory (INCOTERMS 2020). Partial shipment shall be allowed. Any delivery dates given are approximate and are based upon prompt receipt by Seller of all information necessary to permit Seller to proceed with work without interruption.

5.2 Title to and property in the products and in any additional substitutions thereto shall pass to the Buyer when the products are placed in the hands of a carrier at the point of shipment, or on a pro rata basis as services are performed. It is expressly understood and agreed, however, that the passage of title shall not be construed by Seller as a release from Seller's responsibility to fully carry out its obligations under the contract. Upon the Buyer's failure to pay any amount payable, Seller, in addition to any other rights it may have, may immediately seize, and remove the products regardless of whether they are attached to Realty. Seller may retain any sums paid by the Buyer to the date of seizure and removal as compensation for use of the products: this is without prejudice to the Seller's right to sue for further compensation. The Buyer shall not do anything or omit to do anything as a result of which Seller's title and property in the products is adversely affected.

5.3 Risk of loss or damage to the products and in any additional substitutions thereto shall pass when the products are placed in the hands of a carrier at the point of shipment from the Seller’s factory regardless of freight payment, unless Buyer and Seller agree on an alternative point. All claims for shortages or other errors must be made in writing to the Seller within 30 days after receipt of the shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the purchaser.

5.4 If any products cannot be shipped to or received by Buyer when ready due to any cause not attributable to Seller, Seller will notify Buyer and then may ship products to a storage facility, including a facility within the place of manufacture or to an agreed freight forwarder. If Seller places products in storage or if products are detained at any port, the following conditions shall apply: (1) title and all risk of loss or damage shall immediately pass to Buyer if they had not already passed; (ii) amounts otherwise payable to Seller upon delivery or shipment shall be payable upon presentation of Seller’s invoices; (iii) all expenses and charges incurred by Seller, such as preparation for and placement into storage, handling, inspection, preservation, insurance, storage, demmurage, removal and any taxes shall be payable by Buyer upon submission of Seller’s invoices; and (iv) when conditions permit and upon payment of all amounts due hereunder, Seller shall resume delivery of products to the originally agreed point of delivery.

6.0           INSURANCE

6.1 During the period between shipment (or if the product is installed by the Seller, from the time the product is turned over to the Buyer) and final payment for the products, the Buyer will maintain sufficient insurance thereon in the name of the Seller against loss or damage from any cause to cover the unpaid balance of the purchase price, and failing to do so no loss or damage suffered during the aforesaid period shall relieve the Buyer from payments of the balance of the purchase price or from any of the terms of this contract. During such period, the Buyer will maintain the products and related materials delivered by the Seller in good condition.

7.0           EXCUSABLE DELAY

7.1 The Seller shall not be in breach of any of its obligations under this contract where failure to perform or delay in performing any obligation is due, wholly or in part, to (i) a cause beyond its reasonable control, (ii) an act of God, an act or omission of the Buyer or of any governmental authority, governmental priorities, riots, strike or other labour disputes, fires, flood, sabotage, earthquake, storm, epidemic, accident, or (iii) inability due to a cause beyond the Seller's reasonable control to obtain necessary or proper labour, materials, components, facilities, energy, fuel, transportation, required instructions or instructions or information from the Buyer. The foregoing shall apply even though any such cause exists at the time of the order or occurs after the Seller's performance of its obligations is delayed by another cause.

7.2 The Seller will notify the Buyer promptly of any failure to perform or delay in performing due to a cause set out in Paragraph 7.1 and shall specify, as soon as practicable, when the obligation will be performed. Subject to Paragraph 7.3, the time for performing the obligation shall be extended for the period lost due to such a cause.

7.3 Where the period lost is at least 60 days and the parties have not agreed upon a revised basis for performing the obligation, including adjustment of the prices, then, either partly may, upon 30 days written notice, terminate this contract whereupon the Buyer shall pay all outstanding monies due to the Seller and any Cancellation Charges as determined in accordance with Paragraph 11.0.

8.0           LIMITATION OF LIABILITY

8.1 In no event, whether as a result of a breach of contract, indemnity, warranty or tort (including negligence), strict liability, or otherwise, shall the Seller be liable to the Buyer for:

(i)   Loss of profit or revenue, loss of use, cost of capital, downtime costs, cost of substitute products, facilities, services or replacement power;

(ii)  Property damage external to the product and loss arising out of such damage;

(iii) Special, indirect, punitive or consequential damage; or for

(iv) Any of the foregoing suffered by a customer of the Buyer.

8.2 Except as may be provided under PATENTS, Paragraph 4.0, in no event, whether as a result of a breach of contract, indemnity, warranty or tort (including negligence), strict liability or otherwise, shall the liability of the Seller to the Buyer exceed the price of or allocable to the service or product, or components thereof, which gives rise to the claim. Except as to title, any such liability shall terminate upon expiration of the warranty period referred to in Paragraph 1.1. Any such claim of liability must be timely commenced in a court of competent jurisdiction in accordance with the applicable statute of limitations, but in no event later than one year from the termination of the warranty period.

8.3 If the Buyer transfers title to or leases the products sold hereunder to any third party, Buyer shall obtain from such third party a provision in writing affording Seller and its suppliers the protection of this Paragraph 8.0. Seller acknowledges that Buyer may after a period of time transfer title of the hardware sold hereunder to a third party, where at such time the Buyer will execute a Software License Agreement, in a form to be provided by Seller, that protects the intellectual property rights of Seller.    

8.4 If the Seller furnishes Buyer with advice or other assistance which concern the products supplied hereunder or any system or equipment in which any such product may be installed and which is not required to an express term of this contract, the furnishing of such advice or assistance is done without assumption of responsibility or liability therefore and the Buyer shall not institute a claim in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, arising out of or in any way connected therewith.

8.5 The provisions of this Paragraph 8.0 shall survive expiration, cancellation or termination of this contract for any reason (including fundamental breach by Seller) and shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising the contract, except to the extent that such provisions further restrict Seller’s liability. For the purposes of this Paragraph 8.0, the term Seller includes Seller’s subcontractors and suppliers of any tier.

9.0           TAXES AND DUTIES

9.1 Unless otherwise stated, the prices quoted herein do not include any presents or future sales, use, excise, value added, business transfer or similar taxes, whether Country, Federal, State or Provincial, and all such taxes shall be paid by the Buyer or the Buyer shall provide the Seller with evidence of exemption therefrom. If any such taxes referred to in the preceding sentence are included in the prices, the prices shall be adjusted to reflect any changes subsequent to the date of the proposal in such taxes including, but not limited to, changes in the rate and amount. All amounts to be paid by the Buyer are payable as invoiced.

9.2 Any taxes (including income, stamp and turnover or value-added taxes) duties, fees, charges or assessments of any nature levied by any governmental authority outside Norway in connection with transaction, whether levied against Buyer, against Seller or its employees or against any of Seller's subcontractors or their employees, shall be the responsibility of the Buyer and shall be paid directly by the Buyer to the Governmental authority concerned. If Seller or its subcontractors, or the employees of either, are required to pay any such levies and/or fines, penalties, or assessments in the first instance, or as a result of Buyer's failure to comply with any applicable laws or regulations governing the payment of such levies by Buyer, the amount of any payments so made, plus the expense of currency conversion, shall be promptly reimbursed by Buyer upon submission of Seller's invoices therefore.

10.0        CANCELLATION

10.1 The buyer may cancel this order at any time upon written notice and payment to the Seller of the Cancellation Charges referred to in Paragraph 11.0.

11.0        CANCELLATION CHARGES

11.1 In the event that this contract is cancelled pursuant to the Excusable Delay, Cancellation, the Cancellation Charges payable by the Buyer to the Seller shall be calculated as follows:

(i)     In the event that Buyer cancels all or part of an Order, Buyer agrees to pay to Seller a cancellation charge for each product that has been cancelled in accordance with the following schedule:

- 60 days or more prior to Ship Date: 100% of  Engineering Charges

- 45-59 days prior to Ship Date: 5% of Order amount

- 30-44 days prior to Ship Date: 20% of Order amount

- 0-29 days prior to Ship Date: 50% of Order amount

(ii)    60 days or more prior to Ship Date, 100% for each item of Third Party Hardware or Third Party Software that has been cancelled.

(iii)    Custom ordered products only applicable for Seller to sell to Buyer: 100% for all costs direct and indirect assumed by Buyer at the time of cancellation of an Order by Buyer.

10.2 The Cancellation Charges shall be payable upon presentation of Seller’s invoice therefore.

12.0        EXPORT SHIPMENT

12.1 In the absence of an agreement to the contrary, the Buyer shall arrange for (i) export shipment to Buyer's country and (ii) warehouse-to-warehouse insurance (including war risk, if available). If the Seller performs any, or all, of the aforementioned Export Shipment arrangements, the Buyer shall pay Seller for all related fees and expenses, including, but not limited to, those covering preparation of consular documents, consular fees, ocean freight, storage, insurance, and Seller's then current fee for such services upon submission of Seller's invoices therefore.

12.2 In performing any of the foregoing services, Seller shall comply with any reasonable instructions of Buyer or, in the absence thereof, shall act according to its best judgment. In so acting on Buyer's behalf, neither Seller nor its agents shall be liable for fines or other charges due to incorrect declarations or for negligence or for any special, consequential, incidental, indirect, or exemplary damages to the Buyer resulting therefrom.

13.0        GOVERNMENT AUTHORIZATION

13.1 The party that arranges for export shipment (or Buyer's designated export agent) shall be responsible for the timely application in its own name for any required export license. Buyer shall be responsible for timely obtaining and maintaining any required import license, exchange permit or any other governmental authorization. Buyer and Seller shall assist each other when such help is reasonably possible. Seller shall not be liable if any authorization of any government is delayed, denied, revoked, restricted or not renewed, and the Buyer shall not be relieved thereby of its obligations to pay Seller for its products or any other charges which are the obligation of the Buyer hereunder.

13.2 All shipments hereunder shall always be subject to the export control laws and regulations of the Sellers manufacturing location and any amendments thereto. Buyer agrees that it shall not make any disposition of origin products purchased from Seller by way of trans-shipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on Buyer's order or declared as the country of ultimate destination on Seller's invoices, except as said laws and regulations may expressly permit.

14.0        NUCLEAR USE

14.1 The products sold are not intended for nor shall the be used for or as part of any activity or process involving nuclear fission or fusion, or any activity or process involving any use or handling of any radioactive material, including any nuclear material. If the products or any part thereof are used by the Buyer contrary to the aforesaid, the Buyer shall provide, at its own expense, insurance and indemnity satisfactory to the Seller which protects the Seller and all of its subcontractors and suppliers from all loss, expense, damages, costs, or liability of every kind, whether in contract or in tort (including negligence) or the Seller may terminate this contract. Upon such a termination, the Buyer shall pay to the Seller cancellation charges determined according to the CANCELLATION CHARGES in Paragraph 11.0.

15.0        CONFIDENTIALITY

15.1 The Buyer acknowledges that all material and information related to the Seller's products and services which has or will come into its possession or knowledge, consists of confidential and proprietary data, which disclosure to or use by third parties will be damaging. The Buyer therefore agrees to hold such material and information in strictest confidence, not to make use thereof other than for the performance of the products or services supplied hereunder, to release it only to employees requiring such information, and not to release or disclose it to any other party under less stringent conditions than the Buyer would take to protect its own intellectual property.

15.2 The Buyer agrees to take the appropriate action with respect to its employees to ensure that the above-referenced obligations of non-use and non-disclosure of confidential information can be fully satisfied.

16.0        INDEMNIFICATION

16.1 Buyer will indemnify and hold harmless the Seller from any loss, claim or damage of persons or property which arises out of this agreement with the Seller services provided by the Seller, or Buyer possession or use of the Seller's products or services, provided that such loss, claim or damage was not caused solely by the fault of the Seller.

17.0        SOFTWARE LICENSING

17.1 Unless subject to a separate license or agreement, any software furnished hereunder whether separately or incorporated with supplied hardware, including any subsequent updates is furnished under following terms and conditions.

(i)       The software and any part thereof designed to be used only on the type unit on which the software is first installed.

(ii)      No exclusivity of use of the software is transferred to Buyer.

(iii)     Software and hardware documentation that is copyrighted by Seller shall not be copied in whole or in part, but additional copies of software and documentation in printed form may be obtained from Seller or its representatives at Seller's then standard charges, subject to applicable import and export laws and regulations. Buyer agrees that any copyright, proprietary, trade secret or similar notices appearing on and in software will be reproduced and included on and in any modifications and copies, in whole or in part, of software.

(iv)    The source code for software is not included unless specifically listed as an item in Seller's specification.

(v)     On occasion, third party licensed software is provided, it will be identified as such and the Buyer will be required to complete any sublicense specified by the software licensor and provided by the Seller.

(vi)    If the Seller requires a separate software license agreement, Buyer shall execute the software license agreement provided by the Seller on or before installation, and the provisions of the separate software license agreement shall supersede the foregoing subparagraphs to the extent they are inconsistent with such license.

18.0        GENERAL

18.1 The rights and obligations of the parties shall be governed in all respects by the laws of Norway.

18.2 Unless otherwise stipulated herein, the products shall be installed by and at the expense of the Buyer.

18.3 Any representation, understanding, proposal, agreement, warranty, course of dealing or trade usage not contained or referenced herein shall not be binding on the Seller. No modification, amendment, rescission, waiver or other change shall be binding on Seller unless assented to in writing by Seller.

18.4 This proposal is subject to change at any time prior to acceptance of an order by the Seller and unless otherwise stated in the proposal, expires after 30 days from the date hereof.

18.5 All orders are subject to final acceptance by the Seller.

18.6 Any assignment of an order, or right thereunder, by the Buyer without the written consent of the seller shall be void.

18.7 Any products sold shall comply with Country, Federal and Provincial or State laws and regulations of Europe, Canada or the US in effect applicable to the manufacture, packing and shipment location of such products, at the date of the Seller's Proposal, and shall comply with any amendments thereto which may have come into effect prior to the time such products are shipped, provided that the prices and, if necessary, delivery shall be equitably adjusted to compensate the Seller for having to comply with such amendments.

18.8 The invalidity, in whole or in part, of any of the clauses in this contract will not affect any other clauses in this contract.

18.9 An extra charge will be made for special containers. A refund will be made if such containers are returned in good condition to such point as may be designated by the Seller within 180 days from the date of original shipment, FCA (INCOTERMS 2020) Seller's factory.

18.10 The reference to the Seller in Paragraphs 8.0 and 16.0 shall be deemed to include the Seller's suppliers and employees.

18.11 The parties confirm that they have each required that this contract and all related documents be in English.

Last updated: March 2023, Fell Technology AS, TAX ID: 912 282 884, Norway