General conditions for sale of products from Calanus AS
1 INTRODUCTION
1.1 These general conditions (the "General Conditions") apply to all sales of products (the "Products") from Calanus AS (“Calanus”). Calanus and the buyer of the Products (the "Buyer") are jointly referred to as the "Parties", and as a "Party" respectively.
1.2 A Party's "Affiliate" means any company which directly or indirectly is ultimately controlled by the same entity as the company referred to, as well as the ultimate controlling entity of the company referred to. For the purposes of this definition "control" (including the terms controlled by, or under common control with) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a company, whether through the ownership of voting securities, partnership or member interests, by contract or otherwise.
1.3 In addition to the Order Confirmation (as defined in clause 2.1), these General Conditions form the "Agreement" between Calanus and the Buyer, unless otherwise is agreed between the Parties in writing.
1.4 Unless otherwise expressly agreed in writing, these General Conditions shall have precedence over, and supersede, any conflicting provision in any other document provided by the Buyer during the Parties' communication or otherwise.
2 FIELD OF USE
2.1 Buyer may only use the Products for the Field of Use (as defined in clause 2.2).
2.2 “Field of Use” means or refer to
a) the Buyer's or its Customers' (as defined in clause 2.3) own internal use of the Products; and
b) the Buyer's or its Customers' sale of the Products as consumer ready dietary supplements for human consumption (as gelatin capsules or any other suitable form of containment which the Calanus may agree on in writing) to End Customers (as defined in clause 2.4).
2.3 "Customer" means any entity that buy Products from the Buyer in order to sell the Products as dietary supplements for human consumption to End Customers.
2.4 "End Customer" means a person or entity that buy Products or products containing the Product from the Buyer or its Customers for the person's or entity's own personal or internal use.
3 ORDER PROCEDURE
3.1 Binding agreement is considered entered into when the Buyer has sent a purchase order to Calanus (the "Purchase Order") and Calanus confirms the Purchase Order in a written order confirmation (the "Order Confirmation").
3.2 After the Purchase Order is sent, the Buyer may not cancel nor withdraw the order and must accept the Products upon delivery, provided that Calanus sends an Order Confirmation. If the Buyer then rejects acceptance of delivery, Calanus is entitled to full payment.
3.3 Calanus is entitled to reject any Purchase Order without having any liability to the Buyer.
4 PRICE AND PAYMENT
4.1 Calanus shall provide the Products at the price set out in the Order Confirmation, unless otherwise agreed between the Parties in writing.
4.2 The Buyer shall pay additional costs as set out in the Order Confirmation, including VAT costs and costs related to handling, loading, freight and transport if applicable.
4.3 In the event of increases in costs, herunder, but not limited to currency exchange rates or duties/public fees during the time from the Order Confirmation to delivery, Calanus is entitled to adjust the price in accordance therewith.
4.4 The payment terms shall be stated in the Order Confirmation and in the invoice provided to the Buyer by Calanus (the "Invoice"). Unless otherwise agreed, standard payment terms is 100 % of invoice value 15 days prior to estimated delivery date.
4.5 In case of late payment, the Buyer must pay default interest for the delayed period in accordance with the provisions of the Norwegian Act relating to Overdue Payment (In Norwegian: "Forsinkelsesrenteloven") until full payment has been received (including any outstanding payment for any handling/collecting charges).
5 DELIVERY – TRANSFER OF RISK
5.1 Unless otherwise stated by Calanus in the Order Confirmation or the Invoice, or otherwise agreed, delivery is FCA (Free Carrier) (as defined in Incoterms 2020).
5.2 The risk for the Products passes to the Buyer upon delivery as defined by Incoterms 2020 (FCA unless otherwise specified in the Order Confirmation).
5.3 If the Buyer does not take relevant steps for the Products to be received upon delivery, the Buyer is liable for all costs involved in taking care of the Products. The Buyer must be prepared for the eventuality that terminal owners or carriers destroy uncollected goods.
5.4 The Buyer must inspect the shipment for obvious transport damages immediately upon delivery, and should perform a thorough inspection as soon as possible after delivery to check for transport damages. If such inspections are not made, the Buyer loses its right to invoke any claims due to transportation damages.
5.5 In case of faulty goods upon delivery, the Buyer must notify Calanus and the carrier in writing without undue delay and no later than three days after delivery. Alleged faulty goods shall be returned to Calanus or be secured upon instructions from Calanus.
6 DEFECTS
6.1 Information in respect of the Products does not represent any guarantees or warranties, unless this is specifically stated in the Order Confirmation.
6.2 The liability of Calanus for faulty goods is limited to repair or redelivery of the quantity of goods proven to be faulty at the time of delivery (for the avoidance of doubt, it is Calanus sole decision to decide which option is appropriate). Any claims must be made to Calanus within 30 calendar days of the manifestation of the problem with the Products, otherwise the Buyer shall be deemed to have waived whatever rights the Buyer may have had in relation to the defect or fault.
6.3 In case of redelivery or repairs, the Products shall be returned or secured in accordance with the procedure described in clause 5.5.
6.4 Any repairs must be performed by Calanus or personnel authorized by Calanus, unless otherwise agreed between the Parties in writing.
6.5 Calanus does not cover costs due to circumstances for which the Buyer is responsible, such as accidents, misuse, misapplications, storage, damage, negligence or modifications to the Products or any of its components.
7 DELAY
7.1 After sending an Order Confirmation, Calanus will use reasonable commercial efforts to supply Products as long as they are being produced and stocked. Calanus is nevertheless not liable for any consequences of delay.
7.2 If the Products are not delivered within 30 days after the agreed delivery date, and this is not caused by a Force Majeure Event (as defined in clause 15) or circumstances on the part of the Buyer, the Buyer has the right to claim liquidated damages amounting to 0.1% of the total purchase price of the relevant Purchase Order for each calendar day of the delay, limited to a maximum of 5% of the total purchase price of the relevant Purchase Order. However, the Buyer is not entitled to reject receiving the Products.
7.3 The Buyer shall not have the right to terminate the Agreement or relevant Purchase Order for breach for as long as the liquidated damages continue to accumulate. If only parts of the agreed deliverables are delayed, the liquidated damages shall be reduced proportional to the Buyer's ability to utilise the part of the Products that has been delivered.
7.4 If delay is caused by circumstances for which the Buyer is responsible, the time for delivery shall be extended by a period which Calanus finds reasonable taking into account all circumstances of the case.
8 LIMITATION OF LIABILITY AND INDEMNITIES
8.1 Calanus shall not have any other liability for defective Products or delayed delivery than explicitly described in clause 6 and 7 respectively.
8.2 Calanus' liability for defects or delay for the respective Product is in any case limited to the price paid to Calanus for the particular defective or delayed Product.
8.3 Notwithstanding any other clause, term or condition in the Agreement, Calanus' total liability for any and all claims related to the Agreement shall under no circumstance exceed the total purchase price of the Purchase Order such claims are relating to.
8.4 Furthermore, Calanus shall under no circumstances be liable for any loss of profit, revenues, loss of business, loss related to third party claims or contracts and loss of data, nor for any indirect or consequential loss of any kind.
8.5 Regardless of cause, the Buyer shall defend, indemnify and hold Calanus and its Affiliates harmless from and against all losses, claims, liabilities, costs and expenses arising out of, or in respect of, damages to property of the Buyer or injury suffered by the Buyer's personnel.
8.6 Regardless of cause, the Buyer shall defend, indemnify and hold Calanus and its Affiliates harmless from and against all losses, claims, liabilities, costs and expenses related to any of the Buyer's activities in relation to the Agreement, as well as any claim from any third party related to any Products sold by the Buyer.
8.7 The Buyer shall indemnify and hold Calanus and its Affiliates harmless from and against all losses, claims, liabilities, costs and expenses of any kind arising out of, or in respect of, any breach of clauses 9 (IPR), 10 (Confidentiality) or 11 (Anti-Corruption).
9 INTELLECTUAL PROPERTY RIGHTS – ONWARDS SALE – REPRESENTATION
9.1 All registerable, non-registrable, registered and unregistered intellectual and proprietary rights, titles and interests, including, without limitation, all copyrights, patent rights, trade or service marks, business or trade names, logos, trade dress, slogans, brand features, recipes and product compositions, internet domain names and email addresses, rights protecting goodwill and reputation, know-how, design and database rights and compilations, technology, domain names, moral rights, rights of publicity and all other intellectual property rights and similar or equivalent rights in any way relating to the Products or Calanus or its Affiliates anywhere in the world which currently exist or are recognized in the future, and all applications, extensions and renewals in relation to any such rights ("Calanus IPR") are held by Calanus or its Affiliates alone.
9.2 Calanus will retain exclusive ownership of the Calanus IPR. Except for rights expressly granted under this Agreement, the Buyer has no rights whatsoever to use any Calanus IPR.
9.3 Unless otherwise agreed in writing by Calanus, the product offered and sold to End Customers by the Buyer or Customers may not contain any other ingredients than the ingredients in the original Product from Calanus and the Product may not be modified except that the Buyer may repack the Product.
9.4 Calanus grants to Buyer a non-exclusive, royalty free, non-transferrable license to use the trademark Zooca™ Lipids for the Products sold to the Buyer under the Agreement. This right to use the trademark is limited to uses necessary for the sale of the Product and the performance of Buyer's obligations under the Agreement, and Buyer acknowledges and recognizes Calanus' exclusive ownership of such mark and the renown of such mark throughout the world. It is further agreed that the Buyer shall not take any action inconsistent with Calanus' exclusive ownership of such mark. Any use by the Buyer of the trademark (including, without limitation, in advertising or promotional literature) must be approved by the Buyer in advance in writing, and always be in strict accordance with Calanus instructions. For products sold to End Customers which contain the Product the following must be complied with:
a) Buyer and Customers shall use its own trademark on the products sold to End Customers;
b) Buyer and Customers shall use Zooca® Calanus® Oil or any other trademark that Calanus may decide, as a co-brand/ingredient trademark, and that follow Calanus' instructions for graphics and layout as given from time to time.
9.5 Buyer shall monitor the use of the Calanus IPR and inform Calanus of any infringement, misuse or competing products that may influence upon the legal protection of the Calanus IPR or its commercial value.
9.6 The Parties recognise that the Product and its production is based on patents and/or licences and/or methods, and/or other industrial or intellectual property rights which, are the exclusive intangible assets of Calanus (or its licensors), and nothing in this Agreement nor any acts pursuant to this Agreement shall give Buyer any rights whatsoever in this respect except to conduct sales as described herein.
9.7 To the extent that sales of the Products depend on official registration of Product, filing or permission, or part thereof, or such registration or filing is otherwise deemed by Calanus or Buyer to be preferable, Buyer shall receive a specific authorization to conduct such registration, filing or permission, from Calanus, and shall register, file or apply for permission in Calanus' name.
9.8 If a local representative is required for such purposes, Buyer shall undertake to represent Calanus as its agent for the duration of this Agreement. After the termination of this Agreement and irrespective of the reason, Buyer shall transfer or delete such registration or filing at Calanus' request. All costs with local permissions, registrations or filings of Product or Products shall be carried by Buyer, whereas Calanus shall provide all necessary documentation and samples free of charge.
9.9 Any attempt by the Buyer, its Customers or anyone connected to the Buyer (hereunder Buyer's or the Customer's Affiliates and current and previous employees) to copy or produce similar products or infringe on Calanus' IPR in any way will be considered as a material breach of this Agreement, entitling Calanus (or its Affiliates as the case may be) to full damages, including but not limited to profit losses due to such breach of the Agreement and costs associated with legal actions to protect Calanus' (or its Affiliates' as the case may be) rights in this regard to the fullest extent.
10 CONFIDENTIALITY
10.1 All information provided or made available by Calanus to the Buyer in relation to the Agreement shall be considered as confidential information (the "Confidential Information").
10.2 The Buyer agrees to keep confidential and not disclose any Confidential Information except where:
i) the Parties have agreed that the Confidential Information shall be used for marketing purposes or other specific purposes;
ii) the Confidential Information was already lawfully known, or became lawfully known, regardless of the Agreement; or
iii) disclosure is required by laws or regulations, a court or other governmental body, provided that the Buyer gives Calanus notice of such requirement to enable Calanus to seek a protective order or other confidential treatment.
10.3 The Buyer undertakes to take all necessary and suitable measures and actions to effectively protect the Confidential Information at any time against loss and unauthorized access.
10.4 Calanus has the right to use the Buyer's name in reference lists etc. for marketing purposes.
10.5 The Buyer shall not disclose, transfer or otherwise make available any Confidential Information to any third party, and shall only disclose Confidential Information to those of the Buyer's employees, Affiliates, sub-contractors and directors ("Representatives") who have a need to know such Confidential Information for the purpose of the Agreement; provided, however, that each such Representative to whom Confidential Information is disclosed
i) is advised of the existence of this confidentiality obligation and Buyer's obligations hereunder, and
ii) is under at least the same restrictions with respect to the confidentiality, use and non-disclosure of Confidential Information as set forth herein. The Buyer shall be liable for the breach of the Agreement by any of its Representatives.
11 ANTI-CORRUPTION CLAUSE
11.1 Each Party represents and warrants that it shall:
i) comply at all times with all anti-corruption legislation applicable to it and have procedures in place that are, to the best of its knowledge and belief, designed to prevent the commission of any offence under such legislation by any member of its organization or by any person providing services for it or on its behalf; and
ii) make and keep books, records, and accounts which in reasonable detail accurately and fairly reflect the transactions in connection with the Agreement
11.2 Without prejudice to any of its other rights under the Agreement, either Party may terminate the Agreement with immediate effect without incurring any liability to the other Party if at any time the other Party has committed a breach of anti-corruption legislation applicable to it in connection with the Agreement and such breach causes the non-breaching Party to be in breach of any anti-corruption legislation applicable to it.
12 PERSONAL DATA
12.1 Each Party is responsible for ensuring that its processing of personal data under the Agreement is performed in accordance with applicable privacy law.
13 ASSIGNMENT
13.1 The Buyer may not assign the Agreement or its rights, benefits or obligations hereunder to another company without the prior written consent from Calanus.
13.2 Calanus may unilaterally assign the Agreement or its rights, benefits or obligations hereunder to one of its Affiliates.
14 CORRESPONDENCE
14.1 All notices, requests, documents and other communication between the Parties relating to the Agreement shall be exchanged through e-mail. Any documents and other correspondence to Calanus shall be sent to info@zooca.no, unless otherwise decided by Calanus in writing.
15 FORCE MAJEURE
Calanus shall not be liable towards the Buyer under the terms of the Agreement or otherwise to the extent Calanus' breach of its contractual and/or other obligations to the other party are due in whole or in part to matters (including interruption and delay) beyond Calanus' control, including but not limited to acts of God, acts of any government, war, other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor dispute and/or inability to obtain essential supplies and similar causes beyond Calanus' control (each a "Force Majeure Event"). If the fulfillment of any of Calanus' contractual obligations is negatively affected by any circumstance relating to the Covid-19 pandemic or any other epidemic or pandemic, regardless of whether it was possible to foresee or overcome said circumstances, this shall be considered a Force Majeure Event, and Calanus shall not be liable for breach of any obligations in relation to this.
16 TERMINATION
16.1 The Agreement may be terminated by Calanus with immediate effect in case:
i) the Buyer commits any breach of the Agreement, and, if the breach is rectifiable, does not rectify such breach within 30 calendar days after receiving the written notice from Calanus;
ii) the Buyer fails to provide a reasonably adequate plan for rectifying a failure to comply with the agreement, or fails to implement measures to rectify such failure as required by Calanus;
iii) the Buyer is more than fourteen (14) days late with any payment or with opening a Letter of Credit when duly called upon to do so, and fails to correct this within seven (7) days of a reminder sent by e-mail;
iv) the Buyer becomes bankrupt or insolvent, or enters liquidation or receivership or similar process, or enters into a composition with its creditors in relation to its debts;
v) the Buyer assigns or attempts to transfer parts or whole of its rights and/or obligations under the Agreement to any third party without the written consent of Calanus;
vi) Calanus has reasons to believe that the Buyer has committed any breach of clauses 8 (Liabilities), 9 (IPR), 10 (Confidentiality) or 11 (Anti-Corruption;
vii) in case of any material breach of the Agreement by the Buyer.
6.2 In the event of termination by Calanus, Calanus shall have the discretionary right to choose whether any outstanding Purchase Order shall be completed or cancelled. Calanus shall not be liable for any outstanding Purchase Order(s) cancelled in the event of Calanus' termination.
16.2 The Agreement may only be terminated by the Buyer in the case of a material breach of the Agreement by Calanus.
16.3 Clauses 8 (Limitation of Liability, 9 (IPR), 10 (Confidentiality), 11 (Anti-Corruption) and 17 (Miscellaneous) shall survive and stay in effect after the Agreement is terminated. The same applies to any other clause which must reasonably survive to keep its intended effect.
16.4 Termination of the Agreement shall in any event not affect any payment obligation the Buyer has to Calanus pursuant to the Agreement.
17 MISCELLANEOUS
17.1 No amendment or variation of the Agreement shall be effective unless in writing and signed on behalf of each Party.
17.2 Should any provision of the Agreement be held to be void and invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions shall not be affected thereby, and the Parties shall in good faith negotiate legal amendments to the Agreement to maintain the intent of the invalid provision.
17.3 Calanus has a sales lien on the Products until ownership of the Products changes possession according to defined Incoterms and payment has been received. Until ownership of Products have been transferred, they may not be used or disposed over in any way which may cause Calanus to lose the legal protection.
18 GOVERNING LAW AND DISPUTE RESOLUTION
18.1 The Agreement shall be governed by and interpreted in accordance with Norwegian law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply between the Parties.
18.2 Any dispute, controversy or claim arising out of or in connection with the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration and Dispute Resolution Institute of the Oslo Chamber of Commerce in force at any time.
18.3 The place of arbitration shall be Oslo, Norway, and the language of the arbitration proceedings shall be English.
18.4 The rules for fast-track arbitration shall apply where the amount in dispute does not exceed NOK 2,000,000 (NOKtwomillion). The amount in dispute includes the claims made in the request for arbitration and any counterclaims made in the response to the request for arbitration.
18.5 The arbitration proceedings are subject to a duty of confidentiality.
