RUBIX AS, RUBIX A/S, RUBIX SVERIGE AB

TERMS AND CONDITIONS FOR SALE OF GOODS AND SERVICES

 

1.            INTERPRETATION

1.1         In these Conditions (unless the context otherwise requires) the following definitions shall apply:

"Buyer" means the purchaser of Goods and/or Services from Seller.

"Buyer Group" means Buyer, its affiliated companies participating in the work, subcontractors and their contractors and subcontractors, participating companies in an enterprise established for the performance of the work, and the employees of the aforementioned companies.

"Company" means any of Rubix AS, Rubix A/S, Rubix OY or Rubix Sverige AB, as the case may be.

"Company Group" means Company, its affiliated companies participating in the work, subcontractors and their contractors and subcontractors, participating companies in an enterprise established for the performance of the work, and the employees of the aforementioned companies.

"Conditions" means the terms and conditions set out in this document.

"Confidential Information" has the meaning ascribed to such term in Clause 9 below.

"Contract" means the agreement between the Buyer and the Company for the supply and purchase of Goods and/or Services, pursuant always to these Conditions.

"Goods" means goods or supplied or to be supplied by the Company to the Buyer pursuant to the Contract.

"Non-Returnable Goods" means Goods supplied which the Company is unable to accept by return due to the nature of the Goods as more particularly described in Clause 6.

"Parties" means the Buyer and the Company.

"Price" means the total sum payable to Company in accordance with the Contract as that sum is increased or decreased in accordance with the provisions of the Contract.

"Services" means services carried out or to be carried out by the Company for the Buyer pursuant to the Contract.

1.2         Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2.            BASIS OF THE CONTRACT

2.1         Any quotation given by the Company to the Buyer shall not constitute an offer but merely an invitation to treat and shall not be binding on the Company unless and until an order from the Buyer is accepted in writing by the Company.

2.2         The Contract shall not include any Services unless explicitly stated in the Contract. Any information provided by the Company or its representatives, whether orally, in emails, or through any other communication, shall not constitute a warranty, unless explicitly stated as such in the Contract. The Buyer acknowledges that any statements, descriptions, particulars of weights and/or dimensions, warranties, conditions, or recommendations provided by the Company's engineers or representatives are for informational or discussion purposes only and do not imply fitness for a particular purpose or use. Any warranties related to fit for purpose or functionality shall only be binding if explicitly stated in the written Contract. The Company disclaims any liability arising from the Buyer's interpretation of such information as warranties unless expressly documented in the Contract.

2.3         The Buyer may make, and the Company may accept an order transmitted by the Buyer by means of post, e mail, by Company’s internet sales service or by telephone. The order shall only be deemed to be accepted when the Company issues a written acceptance of the order, at which point the Contract shall come into effect.

2.4         These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing and the Buyer waives any rights which it might otherwise have to rely on any other terms and conditions whatsoever.

2.5         No variation or qualification to these Conditions shall be binding upon the Parties unless agreed in writing by an authorised representative of the Company.

2.6         Any typographical or other error or omission in any quotation, sales literature, price list, acceptance of an offer, letter, invoice or any other document whatsoever and howsoever transmitted to the Buyer shall be subject to correction without any liability on the part of the Company.

2.7         No information, including, but not restricted to, statements, descriptions, particulars of weights and/or dimensions, warranties, conditions or recommendations contained in any catalogue, price list, advertisement or any other written statement or verbal communication whatsoever or howsoever transmitted shall be incorporated into the Contract nor shall any such information be deemed to vary or override these Conditions in any way.

2.8         Each Party acknowledges that each Contract together with any written variations and/or qualifications made pursuant to these Conditions contains the whole agreement between the Parties and that it has not relied upon any oral or written representation made to it by the other Party or the other Party’s employees or agents.

3.            PRICE

3.1         The Price payable shall be the list price of the Company at the time of despatch or as confirmed in Company's order confirmation.

3.2         The Company reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Company which is due to any factor beyond its control including but not restricted to alteration of duties, fluctuation in exchange rates, significant increase in the costs of labour, materials or other costs including, without limitation, any increase in the prices charged to the Company by its suppliers. The Company accordingly reserves the right to adjust the invoice price by the amount of any increase in such costs after the price is quoted and the invoice so adjusted shall be payable as if the price set out therein were the original Price.

3.3         The Buyer shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result of, either directly or indirectly, the Buyer requesting a change in the delivery date, quantity or specifications of the Goods, the Buyer causing delay or the Buyer failing to give the Company adequate information or instructions.

3.4         All prices are exclusive of VAT and, unless expressly stated otherwise in the Contract, excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.

3.5         The Company reserves the right to impose a minimum order charge at its discretion.

4.            DELIVERY

4.1         Delivery and/or dates for performance of Services quoted are approximate only. The Buyer will accept the Goods and/or performance of Services even if they are delivered late and late delivery will not entitle the Buyer to terminate the Contract or to require a reduction in the Price. The Company may deliver Goods or Services early on giving reasonable notice to the Buyer.

4.2         Where delivery is by instalments or where Goods are held by the Company to be called off by the Buyer as required then, if the Company fails to deliver any one or more of the instalments or Goods called off in accordance with any agreed dates or if the Buyer makes any claim whatsoever in respect of any one or more instalments or Goods called off, the Buyer shall not be entitled to terminate the Contract.

4.3         Unless otherwise agreed in the Contract the Goods will be delivered ex works (EXW), Incoterms 2020, to the Buyer’s premises.

4.4         If the Buyer fails to take delivery of Goods or fails to accept performance of Services or fails to give the Company adequate delivery instructions in advance of the delivery date then, without prejudice to any other right or remedy available to it, the Company may i) store the Goods until delivery can be effected and charge the Buyer the reasonable costs of storage and insurance; or ii) sell the Goods at the best price readily obtainable in which event the Buyer shall be liable for any loss which would have been payable under the Contract and that actually obtained. These rights shall also apply where the Buyer has arranged to collect the Goods from the Company but fails to do so within 21 (twenty-one) days of notification by the Company that such Goods are ready for collection. In the event that Company invokes its rights under this Clause 4.4, the Company shall be entitled to terminate the Contract.

4.5         Goods must be examined by the Buyer immediately on delivery. Notification of incomplete delivery of Goods and/or of lost or damaged Goods in transit must be made to the Company in writing within three days of delivery of delivery of the Goods.

4.6         Any claim that Goods are not as specified in the Buyer’s order must be made by written notification to the Company within fourteen days of the date of delivery.

4.7         Goods ordered in error or inaccurately by the Buyer, or Goods the Buyer otherwise wishes to return, may only be returned with the written consent of the Company and the Company is entitled to require payment of any losses it has suffered due to the Buyer. Duly authorised returns shall be sent to the Company’s premises at the Buyer’s expense.

4.8         Where Goods are held by the Company to be called off by the Buyer as required, the Company may notify the Buyer that it must complete acceptance of delivery of all the remaining Goods, whichever is appropriate, within a period of six months from the date of such notification.

4.9         The Company shall be entitled to cancel any accepted order or withhold delivery of any Goods or performance of any Services if the Buyer is in breach of any obligation to the Company.

4.10       The Company shall be entitled to assume that any person signing a delivery note on behalf of the Buyer and who appears or claims to have authority to accept delivery shall in fact have that authority.

5.            PAYMENT

5.1         Buyer shall pay invoices from Company within the due date specified in each invoice, or, if no due date is specified, within 20 days following the date of the relevant invoice. 

5.2         The Company may invoice the Buyer for the Goods at shipment of Goods or Services or any time after the completion of delivery.

5.3         Company may send invoices and statements electronically.

5.4         If the Buyer fails to make any payment due under any Contract between it and the Company, then the Company shall be entitled to terminate any Contract between it and the Buyer forthwith and shall not be liable to perform any part of any Contract still incomplete at that time, nor shall the Company be bound by any warranty.

5.5         If the Buyer fails to adhere to the terms of payment of any invoice, then the Company may at its sole discretion demand immediate payment of any or all liabilities whether or not payment is due.

5.6         If the Buyer fails to make any payment on the due date then the Company, without prejudice to any other right or remedy available to it, shall be entitled to charge the Buyer interest from the date on which the payment became overdue on the amounts unpaid in accordance with the Norwegian Delay Interest Act (N.W. forsinkelsesrenteloven) until payment in full is made.

5.7         The Company reserves the right to set off any debts whatsoever which the Buyer owes under any Contract against any amounts which the Company owes to the Buyer for any reason whatsoever.

5.8         Payment shall be made in the currency specified in the invoice.

6.            WARRANTIES, CONDITIONS AND NON- RETURNABLE GOODS

6.1         The Company warrants that: (i) it has title to the Goods and/or the right to perform the Services; (ii) the Goods and Services will conform to any specifications written in an order; (iii) in respect of Goods, that the Goods are new; and (iv) that any Goods and/or Services will be free from material defects for a period of 12 months from the date of delivery of the Goods or performance of the Services (the “Warranty Period”). All other warranties are so far as legal permitted expressly excluded.

6.2         Subject to Clause 6.1 if the Buyer gives written notice to the Buyer during the Warranty Period within 14 days of discovery that some or all of the Goods and/or Services do not comply with the Warranties the Company shall be given a reasonable opportunity of examining such Goods/Services, and the Buyer shall, if required by Company, return such Goods to the Company’s place of business at the Buyer’s cost, the Company shall, at its discretion repair or replace the defective Goods and/or Services, or refund the Price of the defective Goods in full. Such repair/replacement or refund shall be the sole remedy of the Buyer.

6.3         The Company shall not be liable for the Goods/Services’ failure to comply with the Warranties if (i) the Buyer makes any further use of such Goods after giving notice in accordance with Clause 6, (ii) the defect is due to Buyer not following the Company’s instructions as to the storage, commissioning, installation, use and maintenance of the Goods or good trade practice regarding the same, (iii) the defect arises as a result of wilful damage, negligence or abnormal storage or working condition, or (iv) the Buyer has failed to pay for the Goods or Services which are the subject of any claim.

6.4         Except as provided in this Clause 6 and Clause 7.4, the Company (whether in contract, tort or otherwise) shall have no liability to the Buyer in respect of the Goods’ failure to comply with the Warranties.

6.5         Unless expressly agreed in the Contract, the Company shall have no liability for any advice or recommendation given by its employees, representatives, agents or sub-contractors to the Buyer as to the storage, application or use of Goods, for any statement whatsoever on any matter whatsoever relating to Goods or Services.

6.6         Where samples are supplied to the Buyer and an order(s) is subsequently placed for these same items and/or such items are accepted by the Buyer subsequent to the receipt of the samples, then the Buyer is reliant entirely on its own judgment of the samples and the sale of these Goods shall not be considered to be a sale by sample. The Company shall have no liability whatsoever for any claim that Goods are not fit for the purpose for which they are intended.

7.            EXCLUSION OF LIABILITY. INDEMNIFICATION

7.1         Company shall indemnify Buyer Group from and against any claim concerning: (i) personal injury to or loss of life of any employee of Contractor Group, (ii) loss of or damage to any property of Contractor Group, arising out of or in connection with the work or caused by the Goods or Services. This applies regardless of any form of liability, whether strict or by negligence, in whatever form, on the part of Buyer Group. Company shall, as far as practicable, ensure that other companies in Company Group waive their right to make any claim against Buyer Group when such claims are covered by Contractor's obligation to indemnify under the provisions of this Clause 7.

7.2         Buyer shall indemnify Company Group from and against any claim concerning: (i) personal injury to or loss of life of any employee of Buyer Group, (ii) loss of or damage to any property of Buyer Group, arising out of or in connection with the work or caused by the Goods or Services in its lifetime. This applies regardless of any form of liability whether strict or by negligence, in whatever form, on the part of Company Group. Buyer shall, as far as practicable, ensure that other companies in Buyer Group waive their right to make any claim against Company Group when such claims are covered by Buyer's obligation to indemnify under the provisions of this Clause 7.

7.3         The Buyer shall keep the Company fully indemnified at all times against any and all costs, claims, demands, losses or liabilities whatsoever brought or made against the Company or otherwise suffered or incurred by the Company arising directly or indirectly out of any infringement or alleged infringement of patents, trademarks, copyright, design right or other intellectual property right related to import, manufacture or sale of the Goods if made to the specification or special requirements of the Buyer.

7.4         The Company’s liability in contract, tort, (including negligence or breach of statutory duty) or otherwise in connection with the Contract shall be limited to the Price upon which such liability is based.

7.5         Notwithstanding any provision of the Contract, the Company shall not be liable in any circumstances for: (i) any loss of use, production or profit, (direct or indirect); (ii) any loss of business, contracts, revenues; (iii) anticipated savings; (iv) any increase in operating costs; or (v) any consequential, indirect, special or pure economic loss.

7.6         If the Company undertakes to perform Services to the Buyer’s own design and/or specification and/or instruction, it shall have no liability for any loss whatsoever arising in whole or in part from the unsuitability or inadequacy of any such design, specification or instructions nor shall the Company’s right to payment be in any way diminished in such circumstances.

8.            RISK AND PROPERTY

8.1         The Goods shall remain the property of the Company until the Buyer has paid in full for all Goods and Services supplied or to be supplied under the Contract. Until that time the Buyer shall hold the Goods as bailee, keep them separate from Goods belonging to the Buyer or any third party and keep them properly stored and protected and labelled as belonging to the Company.

8.2         The Goods shall be at the Buyer’s risk from the time of delivery to either the Buyer or a third party nominated by the Buyer or on the expiry of seven days from the date on which the Company gives notice to the Buyer that the Goods are available for collection. Risk shall also pass should the Buyer or a third party nominated by the Buyer fail without due cause to accept delivery of the Goods, from the date and time of the abortive delivery.

8.3         The Buyer shall at all times insure the Goods against loss or damage and in the event of such loss or damage shall hold the proceeds of such insurance on behalf of the Company as trustee for the Company until such time as the Goods are paid for in full.

8.4         The Buyer’s right to possession of the Goods or use of the Services shall cease: i) if the Buyer has not paid for the Goods in full by the due date or any alternative date agreed between the Company and the Buyer or ii) if the Contract is terminated by Company pursuant to the provisions of the Contract. The Buyer shall at its own expense make the Goods available to the Company and permit the Company to such Goods.

8.5         The Buyer hereby grants the Company, its employees, agents and sub-contractors an irrevocable licence to enter any premises where the Goods are stored in order to repossess them or inspect them at any time.

8.6         If the Buyer holds in its premises consignment stock belonging to the Company, then the Company reserves the right to enter upon the Buyer’s premises at any time to remove such stock should it consider that this stock is at risk of non-payment, unauthorised use or removal.

9.            CONFIDENTIAL INFORMATION

9.1         For the purpose of this Conditions, Confidential Information means all information in respect of the business and financing of the Parties including but not limited to: any business methods, financial information, prices, discounts; business, financial, marketing, development or manpower plans; customer lists or details; computer systems and software know-how or other matters connected with the Goods or other products or Services manufactured for, marketed, provided or obtained by either Party; information concerning either Party’s relationships with actual or potential clients or customers and the needs and requirements of such persons but excluding any information that (i) is in the public domain or subsequently enters the public domain (other than by breach of obligations of confidentiality) (ii) is already known to the receiving party, or (iii) has been independently developed by the receiving party, as evidenced in writing.

9.2         Each Party hereby agrees in respect of all Confidential Information:

(i)            to keep the Confidential Information in strict confidence and secrecy;

(ii)           not to use the Confidential Information save for use in accordance with its rights and obligations under this Contract;

(iii)          not to disclose the Confidential Information to any third party save only as is required by law. Any company within the Rubix group shall not be classified as a third party; and

(iv)         to restrict the disclosure of Confidential Information to relevant and necessary information required by such of its employees and others who of necessity need the same in the performance of their duties as envisaged by the Contract and to ensure that such employees and others are aware of and bound by the confidentiality of such Confidential Information.

9.3         The obligations of confidentiality under this Clause shall not apply to any Confidential Information that is required by court, law or regulation to be disclosed (provided that the disclosure is made only as so required).

10.         TERMINATION AND CANCELLATION

10.1       The Contract may be terminated immediately on written notice by the Company: (i) if the Buyer is declared bankrupt or makes any proposal to his creditors for a composition or other voluntary arrangement; (ii) if a receiver, liquidator, administrator, administrative receiver or any other like practitioner is appointed in respect of the Buyer’s business; (iii) if the Buyer ceases, or threatens to cease, to carry on business; (iv) if an attachment order is made against the Buyer or any legal process is levied on any property of the Buyer or (v) if payment by the due date of the full amount of any invoice correctly levied by the Company on the Buyer has not been made.

10.2       Either Party may terminate the Contract if the other Party is in material breach of the Contract and has not remedied the breach within thirty days of a written request to do so but without prejudice to any other rights or remedies a Party may be entitled to under these Conditions or at law or to any accrued rights or liabilities of a Party.

10.3       Any right which the Company has to terminate the Contract under any of the provisions of these Conditions shall include the right to suspend any further deliveries and/or Services to be performed under the Contract and upon such termination the Company shall not incur any liability to the Buyer. Furthermore, upon such termination then, if any Goods have been delivered but not paid for, payment shall become immediately due and payable notwithstanding any previous agreement regarding payment set out in the Contract.

10.4       The Buyer may not cancel any order that has been accepted by the Company without the written agreement of the Company.If there is any cancellation or termination for any reason whatsoever, the Buyer shall indemnify the Company against all loss including but not restricted to loss of profit, costs, damages, charges and expenses howsoever incurred by the Company as a result of such cancellation or termination.

11.         FORCE MAJEURE

11.1       The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of its obligations under the Contract, if the delay or failure was due to any cause beyond the Company’s reasonable control, including but not restricted to the following (i) Act of God, explosion, flood, tempest, fire or accident; (ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (iii) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind enacted by any local or governmental body; (iv) import or export regulations or embargoes; (v) strikes, lock-outs or other industrial actions or trade disputes whether involving employees of the Company or of a third party; power failure or breakdown in machinery; or (vi) difficulties in obtaining or shortages or failures of any supplies whatsoever including shortages or failures caused by the Company’s own suppliers or logistic suppliers.

11.2       Save for Clause 11.1 (vi) the same rights shall apply equally and in all respects to the Buyer.

12.         GENERAL

12.1       Inventions made by Company during the performance of its obligations under the Contract shall be the property of Company. This shall, however, not apply, if the rights of a third party intervene or if otherwise agreed between the parties in writing.

12.2       The Buyer may only assign the benefit of the Contract with the prior written consent of the Company, such consent not to be unreasonably withheld.

12.3       No party not itself a party to the Contract shall have any rights whatsoever under the Contract nor any right of enforcement thereof.

12.4       Any notice required or permitted to be given by either Party to the other shall be in writing, addressed to the other Party at its principal place of business or any other address previously provided as being that to which correspondence should be sent. Such notice should be delivered by hand or sent by first class post and shall be deemed to have been received by the Party to whom it is sent 48 hours after the date of posting.

12.5       If the Goods supplied are intended for re-export outside the EU, then the Buyer shall provide details to the Company as to the destination and purchaser of such Goods. Similarly, if the Company reasonably believes that the Goods are intended for export outside of the EU then, if requested by the Company, the Buyer shall provide the same information in relation to destination and purchaser. The Buyer shall demonstrate to the Company that all necessary export licences have been obtained. The Company reserves the right not to supply the Goods in the event of failure to provide any of the information referred to in this Clause when so required.

12.6       No waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of this breach in the future or a waiver of any other breach whatsoever.

12.7       Any reference in these Conditions to a provision of a statute or law shall be construed as a reference to that provision or law as amended, re-enacted or extended at the relevant time.

12.8       If any court or competent authority finds that any provision or part of any provision of these Conditions is invalid, illegal or unenforceable then that provision or part of a provision shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other provisions of these Conditions shall not be affected.

12.9       If any invalid, unenforceable or illegal provision of these Terms would be valid, enforceable and legal if some or any part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

12.10    The headings in these Conditions are for convenience only and shall not affect the interpretation of the Contract.

13.         NORWEGIAN LAW AND DISPUTES

13.1       This Contract shall be governed by and interpreted in accordance with Norwegian law.

13.2       Disputes arising in connection with or as a result of the Contract, and which are not resolved by mutual agreement, shall be settled by court proceedings unless the parties agree otherwise. Any court proceeding shall be brought before Hordaland District Court (N.W. Hordaland tingrett).