Jotun addendum to Orgalime S 2012

Preamble

1. These General Conditions shall apply when the parties agree In Writing or otherwise thereto. Any modifications of or deviations
from them must be agreed In Writing.

Definitions

2. In these General Conditions the following terms shall have the
meanings hereunder assigned to them:

— “Contract”: the agreement In Writing between the
parties concerning supply of the Product and all appendices,
including agreed amendments and additions In Writing to the
said documents;
— “Gross Negligence”: an act or omission implying either
a failure to pay due regard to serious consequences, which
a conscientious contracting party would normally foresee as
likely to ensue, or a deliberate disregard of the consequences
of such an act or omission;
— “In Writing”: communication by document signed by
both parties or by letter, fax, electronic mail and by such other
means as are agreed by the parties;
— “the Product”: the object(s) to be supplied under the
Contract, including software and documentation.

Product information

3. All information and data contained in general product
documentation and price lists shall be binding only to the extent
that they are by reference In Writing expressly included in the
Contract.

Drawings and technical information

4. All drawings and technical documents relating to the Product
or its manufacture submitted by one party to the other, prior or
subsequent to the formation of the Contract, shall remain the
property of the submitting party.

Drawings, technical documents or other technical
information received by one party shall not, without the consent
of the other party, be used for any other purpose than that for
which they were provided. They may not, without the consent of
the submitting party, otherwise be used or copied, reproduced,
transmitted or communicated to a third party.

5. The Supplier shall, not later than at the date of delivery, provide
free of charge information and drawings which are necessary
to permit the Purchaser to install, commission, operate and
maintain the Product. Such information and drawings shall
be supplied in the number of copies agreed upon or at least
one copy of each. The Supplier shall not be obliged to provide
manufacturing drawings for the Product or for spare parts.

Acceptance tests

6. Acceptance tests provided for in the Contract shall, unless
otherwise agreed, be carried out at the place of manufacture
during normal working hours.
If the Contract does not specify the technical requirements,
the tests shall be carried out in accordance with general practice
in the appropriate branch of industry concerned in the country
of manufacture

7. The Supplier shall notify the Purchaser In Writing of the
acceptance tests in sufficient time to permit the Purchaser to be
represented at the tests. If the Purchaser is not represented, the
test report shall be sent to the Purchaser and shall be accepted
as accurate.

8. If the acceptance tests show the Product not to be in accordance
with the Contract, the Supplier shall without delay remedy
any deficiencies in order to ensure that the Product complies
with the Contract. New tests shall then be carried out at the
Purchaser’s request, unless the deficiency was insignificant.

9. The Supplier shall bear all costs for acceptance tests carried
out at the place of manufacture. The Purchaser shall however
bear all travelling and living expenses for his representatives in
connection with such tests.

Delivery. Passing of risk

10. Any agreed trade term shall be construed in accordance with
the INCOTERMS® in force at the formation of the Contract.
If no trade term has been specifically agreed, the delivery
shall be Free Carrier (FCA) at the place named by the Supplier.
If, in the case of delivery Free Carrier, the Supplier, at the
request of the Purchaser, undertakes to send the Product to its
destination, the risk will pass not later than when the Product is handed over to the first carrier. Partial delivery shall not be permitted, unless otherwise agreed.

Time for delivery. Delay

11. If the parties, instead of specifying the date for delivery, have
specified a period of time within which delivery shall take place,
such period shall start to run as soon as the Contract is entered
into and all agreed preconditions to be fulfilled by the Purchaser
have been satisfied, such as official formalities, payments due
at the formation of the Contract and securities.

12. If the Supplier anticipates that he will not be able to deliver the
Product at the time for delivery, he shall forthwith notify the
Purchaser thereof In Writing, stating the reason and, if possible,
the time when delivery can be expected.
If the Supplier fails to give such notice, the Purchaser shall
be entitled to compensation for any additional costs which he
incurs and which he could have avoided had he received such
notice.

13. If delay in delivery is caused by any of the circumstances
mentioned in Clause 41, by an act or omission on the part of
the Purchaser, including suspension under Clauses 21 and 44,
or any other circumstances attributable to the Purchaser, the
Supplier shall be entitled to extend the time for delivery by a
period which is necessary having regard to all the circumstances
of the case. This provision shall apply regardless of whether the
reason for the delay occurs before or after the agreed time for
delivery.

14. If the Product is not delivered at the time for delivery, the
Purchaser shall be entitled to liquidated damages from the date
on which delivery should have taken place.
The liquidated damages shall be payable at a rate of 0.5 per
cent of the purchase price for each commenced week of delay.
The liquidated damages shall not exceed 7.5 per cent of the
purchase price.
If only part of the Product is delayed, the liquidated
damages shall be calculated on that part of the purchase price
which is attributable to such part of the Product as cannot in
consequence of the delay be used as intended by the parties.
The liquidated damages shall become due at the Purchaser’s
demand In Writing but not before delivery has been completed
or the Contract is terminated under Clause 15.
The Purchaser shall forfeit his right to liquidated damages if
he has not lodged a claim In Writing for such damages within six
months after the time when delivery should have taken place.

15. If the delay in delivery is such that the Purchaser is entitled
to maximum liquidated damages under Clause 14 and if the
Product is still not delivered, the Purchaser may In Writing
demand delivery within a final reasonable period which shall not
be less than one week.
If the Supplier does not deliver within such final period and
this is not due to any circumstances which are attributable to
the Purchaser, then the Purchaser may by notice In Writing to
the Supplier terminate the Contract in respect of such part of
the Product as cannot in consequence of the Supplier’s failure
to deliver be used as intended by the parties.
If the Purchaser terminates the Contract he shall be entitled to
compensation for the loss he suffers as a result of the Supplier’s
delay, including any consequential and indirect loss. The total
compensation, including the liquidated damages which are
payable under Clause 14, shall not exceed 15 per cent of that
part of the purchase price which is attributable to the part of the
Product in respect of which the Contract is terminated.
The Purchaser shall also have the right to terminate the Contract by notice In Writing to the Supplier, if it is clear from the circumstances that there will occur a delay in delivery which, under Clause 14, would entitle the Purchaser to maximum
liquidated damages. In case of termination for this reason, the
Purchaser shall be entitled to maximum liquidated damages
and compensation under the third paragraph of this Clause 15.

16. Liquidated damages under Clause 14 and termination of the
Contract with limited compensation under Clause 15 shall be
the only remedies available to the Purchaser in case of delay
on the part of the Supplier. All other claims against the Supplier
based on such delay shall be excluded, except where the
Supplier has been guilty of Gross Negligence.

17. If the Purchaser anticipates that he will be unable to accept
delivery of the Product at the time for delivery, he shall forthwith
notify the Supplier In Writing thereof, stating the reason and, if
possible, the time when he will be able to accept delivery.
If the Purchaser fails to accept delivery at the time for delivery,
he shall nevertheless pay any part of the purchase price which
becomes due at the time for delivery, as if delivery had taken
place at the time for delivery. The Supplier shall arrange for
storage of the Product at the risk and expense of the Purchaser.
The Supplier shall also, if the Purchaser so requires, insure the
Product at the Purchaser’s expense.

18. Unless the Purchaser’s failure to accept delivery is due to any
such circumstance as mentioned in Clause 41, the Supplier may
by notice In Writing require the Purchaser to accept delivery
within a final reasonable period.
If, for any reason which is not attributable to the Supplier, the
Purchaser fails to accept delivery within such period, the Supplier
may by notice In Writing terminate the Contract in whole or in
part. The Supplier shall then be entitled to compensation for the
loss he suffers by reason of the Purchaser’s default, including
any consequential and indirect loss. The compensation shall
not exceed that part of the purchase price which is attributable
to that part of the Product in respect of which the Contract is
terminated.

Payment

19. Payment shall be made within 30 days after the date of invoice.
Unless otherwise agreed, the purchase price shall be paid
with one third at the formation of the Contract and one third
when the Supplier notifies the Purchaser that the Product, or
the essential part of it, is ready for delivery. The remaining part
of the purchase price shall be paid when the entire Product is
delivered.

20. Whatever the means of payment used, payment shall not be
deemed to have been effected before the Supplier’s account
has been irrevocably credited for the amount due.

21. If the Purchaser fails to pay by the stipulated date, the Supplier
shall be entitled to interest from the day on which payment
was due and to compensation for recovery costs. The rate of
interest shall be as agreed between the parties or otherwise 8
percentage points above the rate of the main refinancing facility
of the European Central Bank. The compensation for recovery
costs shall be 1 per cent of the amount for which interest for late
payment becomes due.
In case of late payment and in case the Purchaser fails to
give an agreed security by the stipulated date the Supplier
may, after having notified the Purchaser In Writing, suspend his
performance of the Contract until he receives payment or, where
appropriate, until the Purchaser gives the agreed security.
If the Purchaser has not paid the amount due within three
months the Supplier shall be entitled to terminate the Contract
by notice In Writing to the Purchaser and, in addition to the
interest and compensation for recovery costs according to this
Clause, to claim compensation for the loss he incurs. Such
compensation shall not exceed the agreed purchase price.

Retention of title

22. The Product shall remain the property of the Supplier until paid
for in full to the extent that such retention of title is valid under relevant law.
The Purchaser shall at the request of the Supplier assist him
in taking any measures necessary to protect the Supplier’s title
to the Product. The retention of title shall not affect the passing of risk under
Clause 10.

Liability for defects

23. Pursuant to the provisions of Clauses 24-39, the Supplier
shall remedy any defect or nonconformity (hereinafter termed
defect(s)) resulting from faulty design, materials or workmanship.

24. The Supplier shall not be liable for defects arising out of
materials provided or a design stipulated or specified by the
Purchaser.

25. The Supplier shall only be liable for defects which appear under
the conditions of operation provided for in the Contract and
under proper use of the Product.

26. The Supplier shall not be liable for defects caused by
circumstances, which arise after the risk has passed to the
Purchaser, e.g. defects due to faulty maintenance, incorrect
installation or faulty repair by the Purchaser or to alterations
carried out without the Supplier’s consent In Writing. The
Supplier shall neither be liable for normal wear and tear nor for
deterioration.

27. The Supplier’s liability shall be limited to defects which appear
within a period of one year from delivery. If the use of the
Product exceeds that which is agreed, this period shall be
reduced proportionately.

28. When a defect in a part of the Product has been remedied, the
Supplier shall be liable for defects in the repaired or replaced
part under the same terms and conditions as those applicable
to the original Product for a period of one year. For the remaining
parts of the Product the period mentioned in Clause 27 shall be
extended only by a period equal to the period during which and
to the extent that the Product could not be used as a result of
the defect.

29. The Purchaser shall without undue delay notify the Supplier In
Writing of any defect which appears. Such notice shall under no
circumstances be given later than two weeks after the expiry of
the period given in Clause 27 or the extended period(s) under
Clause 28, where applicable.
The notice shall contain a description of the defect.
If the Purchaser fails to notify the Supplier In Writing of a
defect within the time limits set forth in the first paragraph of
this Clause, he shall lose his right to have the defect remedied.
Where the defect is such that it may cause damage, the
Purchaser shall immediately inform the Supplier In Writing. The
Purchaser shall bear the risk of damage to the Product resulting
from his failure so to notify. The Purchaser shall take reasonable
measures to minimise damage and shall in that respect comply
with instructions of the Supplier.

30. On receipt of the notice under Clause 29 the Supplier shall at his
own cost remedy the defect without undue delay, as stipulated
in Clauses 23-39. The time for remedial work shall be chosen
in order not to interfere unnecessarily with the Purchaser’s
activities.
Repair shall be carried out at the place where the Product is
located unless the Supplier deems it more appropriate that the
Product is sent to him or a destination specified by him.
If the defect can be remedied by replacement or repair of a defective part and if dismantling and re-installation of the part
do not require special knowledge, the Supplier may demand
that the defective part is sent to him or a destination specified by
him. In such case the Supplier shall have fulfilled his obligations
in respect of the defect when he delivers a duly repaired part or
a part in replacement to the Purchaser.

31. The Purchaser shall at his own expense provide access to the
Product and arrange for any intervention in equipment other
than the Product, to the extent that this is necessary to remedy
the defect.

32. Unless otherwise agreed, necessary transport of the Product
or parts thereof to and from the Supplier in connection with the
remedying of defects for which the Supplier is liable shall be at
the risk and expense of the Supplier. The Purchaser shall follow
the Supplier’s instructions regarding such transport.

33. Unless otherwise agreed, the Purchaser shall bear any
additional costs which the Supplier incurs for remedying the
defect caused by the Product being located in a place other
than the destination stated at the formation of the Contract for
the Supplier’s delivery to the Purchaser or – if no destination has
been stated – the place of delivery.

34. Defective parts which have been replaced shall be made
available to the Supplier and shall be his property.

35. If the Purchaser has given such notice as mentioned in Clause
29 and no defect is found for which the Supplier is liable, the
Supplier shall be entitled to compensation for the costs he
incurs as a result of the notice.

36. If the Supplier does not fulfil his obligations under Clause 30,
the Purchaser may by notice In Writing fix a final reasonable
period for completion of the Supplier’s obligations, which shall
not be less than one week.
If the Supplier fails to fulfil his obligations within such final
period, the Purchaser may himself undertake or employ a
third party to undertake necessary repair work at the risk and
expense of the Supplier.
Where successful repair work has been undertaken by the
Purchaser or a third party, reimbursement by the Supplier of
reasonable costs incurred by the Purchaser shall be in full
settlement of the Supplier’s liabilities for the said defect.

37. Where the Product has not been successfully repaired, as
stipulated under Clause 36,

— a) the Purchaser shall be entitled to a reduction of the
purchase price in proportion to the reduced value of the
Product, provided that under no circumstances shall such
reduction exceed 15 per cent of the purchase price, or
— b) where the defect is so substantial as to significantly
deprive the Purchaser of the benefit of the Contract as regards
the Product or a substantial part of it, the Purchaser may
terminate the Contract by notice In Writing to the Supplier in
respect of such part of the Product as cannot in consequence
of the defect be used as intended by the parties. The Purchaser
shall then be entitled to compensation for his loss, costs and
damages up to a maximum of 15 per cent of that part of the
purchase price which is attributable to the part of the Product
in respect of which the Contract is terminated.

38. Notwithstanding the provisions of Clauses 23-37 the Supplier
shall not be liable for defects in any part of the Product for more
than one year from the end of the liability period referred to in
Clause 27 or from the end of any other liability period agreed
upon by the parties

39. Save as stipulated in Clauses 23-38, the Supplier shall not be
liable for defects. This applies to any loss the defect may cause
including loss of production, loss of profit and other indirect
loss. This limitation of the Supplier’s liability shall not apply if he
has been guilty of Gross Negligence.

Allocation of liability for damage caused by the
Product

40. The Supplier shall not be liable for any damage to property
caused by the Product after it has been delivered and whilst
it is in the possession of the Purchaser. Nor shall the Supplier
be liable for any damage to products manufactured by the
Purchaser or to products of which the Purchaser’s products
form a part.
If the Supplier incurs liability towards any third party for such
damage to property as described in the preceding paragraph,
the Purchaser shall indemnify, defend and hold the Supplier
harmless.
If a claim for damage as described in this Clause is lodged
by a third party against one of the parties, the latter party shall
forthwith inform the other party thereof In Writing.
The Supplier and the Purchaser shall be mutually obliged to
let themselves be summoned to the court or arbitral tribunal
examining claims for damages lodged against one of them
on the basis of damage allegedly caused by the Product. The
liability between the Supplier and the Purchaser shall however
be settled in accordance with Clause 46.
The limitation of the Supplier’s liability in the first paragraph
of this Clause shall not apply where the Supplier has been guilty
of Gross Negligence.

Force majeure

41. Either party shall be entitled to suspend performance of
his obligations under the Contract to the extent that such
performance is impeded or made unreasonably onerous by
Force Majeure, meaning any of the following circumstances:
industrial disputes and any other circumstance beyond the
control of the parties such as fire, war, extensive military
mobilization, insurrection, requisition, seizure, embargo,
restrictions in the use of power, currency and export restrictions,
epidemics, natural disasters, extreme natural events, terrorist
acts and defects or delays in deliveries by sub-contractors
caused by any such circumstance referred to in this Clause.
A circumstance referred to in this Clause whether occurring
prior to or after the formation of the Contract shall give a right to suspension only if its effect on the performance of the
Contract could not be foreseen at the time of the formation of
the Contract.

42. The party claiming to be affected by Force Majeure shall notify
the other party In Writing without delay on the intervention and
on the cessation of such circumstance. If a party fails to give
such notice, the other party shall be entitled to compensation
for any additional costs which he incurs and which he could
have avoided had he received such notice.
If Force Majeure prevents the Purchaser from fulfilling his
obligations, he shall compensate the Supplier for expenses
incurred in securing and protecting the Product.

43. Regardless of what might otherwise follow from these General
Conditions, either party shall be entitled to terminate the
Contract by notice In Writing to the other party if performance
of the Contract is suspended under Clause 41 for more than
six months.

Anticipated non-performance

44. Notwithstanding other provisions in these General Conditions
regarding suspension, each party shall be entitled to suspend
the performance of his obligations under the Contract, where it
is clear from the circumstances that the other party is not going
to perform his obligations. A party suspending his performance
of the Contract shall forthwith notify the other party thereof In
Writing.

Consequential losses

45. Save as otherwise stated in these General Conditions there
shall be no liability for either party towards the other party for
loss of production, loss of profit, loss of use, loss of contracts or
for any other consequential or indirect loss whatsoever.

Disputes and applicable law

46. All disputes arising out of or in connection with the Contract
shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators
appointed in accordance with the said Rules.

47. The Contract shall be governed by the substantive law of the
Supplier’s country.

Jotun addendum to Orgalime S 2012

Clause 2, the following definitions shall be amended:

To be amended:
“Gross Negligence”: an act or omission implying either a failure to pay due
regard to (i) contractual obligations which a contentious contracting party
would normally honour or serious consequences (under the contract,
equity or law), which a conscientious contracting party would normally
foresee as likely to ensue, or (ii) wilful misconduct, including a deliberate
disregard of contractual obligations or the consequences of such act or
omission. “
“the Product”: the goods to be delivered and/or the services to be
performed by Supplier pursuant to the Contract, including the provision of
documentation necessary to install, operate and maintain the delivered
Product.

“Taking Into Use”: when the Product has been installed, tested and taken
into use by the Purchaser.

To be added:

“Supplier”: the party providing the Products according to the Contract.
“Purchaser”: the specific Jotun entity ordering the Product.

Clause 14, second paragraph is replaced with the following;

The liquidated damages shall be payable at a rate of 1.0 per cent of the
purchase price for each commenced week of delay. The liquidated
damages shall not exceed 10 per cent of the purchase price.

Clause 14, last paragraph is replaced with the following;

The Purchaser shall forfeit his right to liquidated damages if he has not In
Writing lodged a claim or not reserved his right to lodge a claim for such
damages within six months after the time when delivery should have taken
place or two months after actual delivery, whichever occurs latest.

Clause 15, third paragraph is replaced with the following;

If the Purchaser terminates the Contract he shall be entitled to
compensation for the loss he has suffered as a result of the Supplier's
delay, including any consequential and indirect loss. The total
compensation, including the liquidated damages which are payable under
Clause 14, shall not exceed 20 per cent of that part of the purchase price
which is attributable to the part of the Product in respect of which the
Contract is terminated.

Clause 19 is replaced with the following;

Payments shall be made within 45 days after the date of the invoice.
Unless otherwise agreed, the purchase price shall be paid when the entire
Product is delivered.

Clause 21, first paragraph is replaced with the following;

If the Purchaser fails to pay by the stipulated date, the Supplier shall be
entitled to interest from the day on which payment was due. The rate of
interest shall be as agreed between the parties or otherwise 8 percentage
points above the rate of the main refinancing facility of the European
Central Bank.

Clause 21, third paragraph is replaced with the following;

If the Purchaser has not paid the amount due within three months the
Supplier shall be entitled to terminate the Contract by notice In Writing to
the Purchaser and claim compensation for the loss he incurs. Such
compensation shall not exceed the agreed purchase price.

Clause 22, second paragraph is replaced with the following;

The Purchaser shall at the request of the Supplier assist him in taking
reasonable measures necessary to protect the Supplier’s title to the
Product provided the Products can be used as intended by Purchaser.

Clause 27 is replaced with the following;

The Supplier's liability pursuant to the provisions of Clauses 23-39 is limited
to defects which appear within a period of 24 months after Purchaser’s
Taking Into Use. However, the Supplier shall not be liable for more than 36
months after delivery.

Clause 28 is replaced with the following;

When a defect in a part of the Product has been remedied, the Supplier
shall be liable for defects in the repaired or replaced part under the same
terms and conditions as those applicable to the original Product for a
period of up 24 months, however after the first 12 months of the period
set out in Clause 27 (24 month after Taking Into Use) said period shall be
12 months. For the remaining parts of the Product the period mentioned in
Clause 27 shall be extended only by a period equal to the period during
which the Product could not be used as a result of the defect.

Clause 37 is replaced with the following;

Where the defect has not been successfully repaired by Supplier as
stipulated Clause 36,

— a) the Purchaser shall be entitled to a reduction of the purchase price in
proportion to the reduced value of the Product, provided that under no
circumstance shall such reduction exceed 30 per cent of the purchase
price, or
— b) where the defect is so substantial as to significantly deprive the
Purchaser of the benefit of the Contract, the Purchaser may terminate the
Contract by notice in writing to the Supplier. The Purchaser is then entitled
to compensation for the loss he has suffered up to a maximum of 30 per
cent of the purchase price.

Clause 38 is replaced with the following;

Notwithstanding the provisions of Clauses 23-37 the Supplier shall not be
liable for defects in any part of the Product for more than 24 months from
the end of the period referred to in Clause 27 or from the end of any other
liability period agreed upon by the parties.

Clause 42, last paragraph is replaced with the following:

If Force Majeure prevents the Purchaser from fulfilling his obligations, he
shall compensate the Supplier for expenses incurred in securing and
protecting the Product from the time the risk should have passed to
Purchaser according to what was initially agreed.

Clause 47 is replaced with the following;

The contract shall be governed by the substantive laws of the Purchasers
country where the arbitration also shall take place.

Clause 48 (new Clause) to be included:

Supplier and its subcontractors shall have a documented, implemented and
auditable Health, Safety and Environment (HSE) management system and
Quality system for the Products and all production of the Products shall be
performed according to applicable laws and regulations where the Work is
performed.
Supplier and its subcontractors shall support and respect the United
Nations Global Compact's ten principles in the areas of human rights,
labour, the environment and anti-corruption.
Supplier and its subcontractors shall conduct its business with respect and
consideration for the environment. Supplier and its subcontractors shall
strive to minimise their environmental impact and recognise and be
compliant with relevant environmental legislation.
Supplier and its subcontractors are aware of Jotun Green Steps policy
(available at jotun.com – About Jotun – Corporate Responsibility) and is
encouraged to support the goal of reducing VOC emissions, reducing
hazardous material, reducing energy consumption, reducing carbon foot
print and reducing waste.
Supplier and its subcontractors shall comply with and respect the “Jotun
Anti-Corruption policy” attached hereto.