Standard Purchasing Terms

1. Scope

4.2 Price Reviews.

Supplier guarantees that prices for Deliverables shall remain fixed for periods of at least twelve (12) months after Hydro´s PO or acceptance of Supplier’s quotation, notwith­standing that the parties may agree on fixed prices for longer time periods or on price reductions during such a period. If Supplier intends to increase any prices for Deliverables, Supplier shall notify Hydro in writing at least two (2) months prior to the end of the applicable twelve (12) month period. Supplier shall justify any price increase such as raw materials and manufacturing costs, exchange rate fluctuations, new technology, labour, interest rate changes and market changes before the parties agree to any price review. If the parties cannot agree on the increased prices within a reasonable period after Supplier’s notice, notwithstanding anything to the contrary in the contract, Hydro shall have the right to cancel all open POs, along with the contract, without any liability or obligation owing to Supplier whatsoever. 

4.3 Payment Terms.

Supplier will invoice Hydro for the purchase price for the Deliverables as stated on the PO after Hydro’s receipt of the Deliverables. Unless otherwise expressly agreed in writing, invoices shall be payable ninety (90) days after the date of the invoice, shall be remitted to the billing address on the PO and must include the relevant PO number.

4.4 Set-off.

Hydro shall be entitled at any time when commercially reasonable to set off any liability of Hydro to Supplier against any liability of Supplier to Hydro howsoever arising and whether any such liability is present or future, liquidated or unliquidated. Any exercise by Hydro of its rights under this section shall be without prejudice to any other rights or remedies available to Hydro under the contract or available at law or in equity.

4.5 Forecasts.

All forecasts provided by Hydro shall be done on a non-binding basis, unless otherwise agreed to in writing between the parties. Supplier shall agree on significantly shorter lead times if Hydro provides Supplier with non-binding monthly rolling forecasts. Within one (1) week after receiving Hydro’s forecast, Supplier shall acknowledge the receipt of the forecast and confirm to Hydro in writing that it can deliver all forecasted Deliverables. If Hydro does not receive written acknowledgement of its forecasts within this timeframe, the forecasts are automatically deemed to be accepted.

5. Delivery

5.1 

The dispatch data of all shipments of Deliverables that are products shall be provided to the Hydro contact person identified on the PO by fax, email or other written expedited means within twenty-four (24) hours of dispatch.

5.2

Supplier agrees: (a) to properly pack, mark and ship Deliverables in accordance with the requirements of Hydro, the involved carriers, and, if applicable, the country of destination; (b) to route shipments in accordance with Hydro’s instructions; (c) to make no charge for handling, packaging, storage or transportation of Deliverables, unless otherwise expressly stated in the contract; (d) to provide with each shipment packing slips with Hydro’s contract and/or PO number and date of shipment marked thereon; (e) to properly mark each package with a label/tag according to Hydro’s instructions and the customs regulations of the country of import; and (f) to promptly forward the original bill of lading or other shipping receipt for each shipment in accordance with Hydro’s instructions. Supplier will include on bills of lading or other shipping receipts, correct classification identification of the Deliverables shipped in accordance with Hydro’s instructions and carrier’s requirements. The marks on each package and identification of the goods on packing slips, bills of lading and invoices (when required) shall be sufficient to enable Hydro to easily identify the Deliverables included.

5.3

Hydro may, at its option, return, freight collect, all Deliverables received more than five (5) days in advance or in excess of the quantity specified on its PO, or may, at its option, retain such units with payment therefore deferred until it would otherwise be due.

6. Representations and Warranties

6.1 Quality Management.

Supplier acknowledges and accepts that Supplier’s commitment to quality is a primary requirement of Hydro. Supplier commits to the continued quality improvement of process to manufacture or create the Deliverables. To the extent relevant to the Deliverables, Supplier shall at all times have and document a certified quality management system meeting the requirements of ISO 9001, ISO TS 16949, AS 9001, ISO 22000 or equivalent. Supplier will provide Hydro with such documentation and acceptable quality data upon request. Hydro or its representatives may at any time, after appropriate notification, conduct quality audits of Supplier’s production facilities and quality control procedures, as well as audits to assess Supplier’s compliance with its obligations under Section 6. In addition, subject to the confidentiality provisions of Section 7, Supplier undertakes to grant Hydro unrestricted access to all information (except financial records) and facilities relevant to the Deliverables and to provide a copy of the relevant information.

6.2 Warranty of Title.

Supplier warrants and represents to Hydro that upon the Delivery to Hydro of the Deliverables (a) Hydro shall acquire good and clear title to the Deliverables, free and clear of all liens and encumbrances, (b) all Deliverables provided hereunder, excluding any product designs which are requested by Hydro, are either owned or properly licensed by Supplier or are in the public domain and the use thereof by Hydro, its representatives, distributors, dealers end users and other direct and indirect customers, does not and shall not infringe any proprietary rights of any third party, and (c) Supplier has the full power to enter into and to carry out the obligations under the contract and to grant Hydro all necessary rights and licenses under the contract. As of the date of the acknowledgement of the PO, Supplier represents that it has not received any notice or claim from a third party alleging that all or any part of the Deliverables, infringes the proprietary rights of any third party.

6.3 Warranty.

Supplier warrants that all Deliverables that are products will be new, free from any defects in design, material and workmanship and will conform to the agreed specifications, descriptions and drawings. Supplier warrants that all Deliverables that are services will conform to the service description and any applicable statement of work. The warranty period for all Deliverables shall be twenty-four (24) months from the date of Delivery. Hydro shall have the right at any time after the Delivery to test and inspect the Deliverables. If Hydro suspects any products to be defective, Hydro shall be entitled, at Supplier's risk and expense, to return the defective Deliverables. Within ten (10) business days of receipt of defective Deliverables, Supplier shall, at Hydro's option, either repair or replace the defective Deliverables and return them to Hydro at its expense. Supplier shall be responsible for de-installation and re-installation of defective Deliverables that are products or for the costs of doing so. All repaired and replaced Deliverables that are products shall be warranted for twenty-four (24) months. Supplier will remedy non-conforming Deliverables that are services promptly upon notification and at its own cost. In the event a Deliverable cannot be repaired, replaced or otherwise remedied, Supplier shall refund Hydro the full purchase price paid for the Deliverable. In addition to these remedies, Hydro shall be entitled to damages caused by any defective Deliverables, and upon request, Supplier shall provide Hydro with a report of the causes and an analysis of the defects and propose corrective actions to avoid similar defects in future Deliveries.

6.4 Compliance with Laws and Hydro’s Policies.

Supplier and Supplier’s Deliverables shall at all times be in compliance with all applicable laws, rules and regulations including, without limitation, employment laws, personal privacy and secrecy and HSE-regulations, as well as with Hydro’s HSE Standards and EC Regulation 1907/2006 concerning the Registration, Evaluation and Restriction of Chemicals (REACH). Supplier shall use its best efforts to assist Hydro in case of any customer or government audits.

Supplier shall indemnify and hold harmless Hydro, its officers, employees and agents (in this clause referred to as "those indemnified") from and against any loss (including legal costs and expenses), damages or liability, reasonably incurred or suffered by any of those indemnified arising from any claim, suit, demand, action or proceeding, by any person against any of those indemnified, where such loss, damages or liability is caused by, arises out of, or results from or in connection with Supplier’s noncompliance with any laws and regulations or Hydro’s policies, as well as any negligence, willful misconduct or breach of the contract. In addition, any systematic failure to meet such standards shall constitute a material breach of the contract, entitling Hydro to immediate termination of the relevant PO or contract without any right of compensation for Supplier.

Supplier shall at all times maintain full and proper insurance coverage, with coverages in commercially reasonable types and amounts, against loss, damage, theft and all other reasonably foreseeable events which may negatively impact the Deliverables. In addition, Supplier is responsible for obtaining and maintaining all export licenses required and certificates necessary for the supply, sale and delivery of the Deliverables.

6.5 Supplier Code of Conduct.

Supplier shall at all times ensure that it complies with the principles set out in Hydro’s Supplier Code of Conduct (a copy of which is available on https://www.hydro.com/en/about-hydro/Corporate-governance/Governance-principles/ or upon request). Furthermore, Supplier shall actively promote the principles set out in Hydro’s Supplier Code of Conduct with its own suppliers/contractors and sub-suppliers/subcontractors of any tier that have a material contribution to the supply of the Deliverables to Hydro (Supplier and such suppliers/contractors/sub-suppliers/subcontractors being together, the “Supply Chain”). Hydro may at any time take any reasonable actions to monitor and audit Supplier’s compliance with its obligations under this section, including, without limitation, (i) by requiring Supplier to provide details of the Supply Chain’s compliance systems; and (ii) by carrying out, with reasonable prior notice, inspections of the Supply Chain’s sites. Supplier shall provide all reasonable assistance to Hydro. If at any time, Hydro identifies, or reasonably suspects, non-compliance with or breach of the principles of Hydro’s Supplier Code of Conduct (“Non-Compliance”) by any member of the Supply Chain, Hydro shall notify Supplier of such Non-Compliance. Supplier shall provide all reasonable assistance to enable Hydro to investigate the Non-Compliance. If a Non-Compliance in the Supply Chain is material (with regard to (i) the nature of the principle concerned, (ii) any potential effect on Hydro’s and its affiliates’ reputations, or (iii) the performance of a contract) and/or is not able to be corrected, Hydro may terminate any contract by written notice. If a Non-Compliance in the Supply Chain is immaterial and is able to be corrected, Supplier shall be given a reasonable period within which the Non-Compliance shall be corrected. Supplier shall, without undue delay, submit a correction plan to Hydro. If upon the expiry of the correction period, the Non-Compliance has not been corrected, Hydro has a termination right. The rights and remedies in this section are not exclusive of and are without prejudice to any rights and remedies provided elsewhere in a contract and by general law.

7. Confidentiality

From the issuing of the first PO or signing of a contract and for a period of five (5) years after the last Delivery by Supplier, the parties shall not directly or indirectly, use any proprietary, confidential, or trade secret information or know-how of the other party (other than information which is in the public domain, lawfully required to be disclosed or is developed independently), including, but not limited to, information about products, financials, business or customers (collectively, “Confidential Information”) for their own benefit or for the benefit of a third party, and shall not disclose such Confidential Information to any third party, other than the parties' employees or authorized contractors and named subcontractors solely on a "need to know" basis, unless: (a) the receiving party obtains the prior written consent of the disclosing party; (b) such disclosure is necessary to enforce a party’s rights under the contract; or (c) such disclosure is required by applicable law or by legal, judicial, administrative or regulatory process, provided that the receiving party, to the extent not prohibited by applicable law or the authority with jurisdiction over such process, promptly notifies the disclosing party so that it may, if it so elects, seek a protective order or other appropriate relief. “Confidential Information” shall include any reports, notes, memoranda, analyses or other information developed by the receiving party based on the disclosing party’s Confidential Information, but shall not include information that: (i) has come into the public domain through no fault of the receiving party; (ii) was lawfully disclosed to the receiving party by a third party not otherwise bound by a duty of confidentiality; (iii) was independently developed by the receiving party not otherwise in breach of the contract; or (iv) was rightfully known by the receiving party prior to entering into the contract.

Disclosure hereunder of Confidential Information is for the sole purpose of conducting business between the parties. Neither party shall utilize for any reason whatsoever Confidential Information received from the other for its own benefit, either in its own processes, or to fabricate, or have fabricated, goods for sale. Nothing herein shall be construed to create a partnership, joint venture or any other form of entity, nor a license to use any disclosed information or transfer any intellectual property rights. All intellectual rights to any information exchanged between the parties shall remain the property of the disclosing party. Further, neither party shall have right to bind the other to any commitment or obligation.

In addition, unless Supplier obtains the prior written consent of Hydro, Supplier shall not use the name, logo, service marks, trademarks or other protected property of Hydro or any of its Affiliates, or describe or identify the Deliverables in any publicity releases, marketing materials, advertising or as any type of reference. Further, any Deliverables that are the result of Supplier’s provision of consulting or other professional services shall be deemed to be works for hire belonging exclusively to Hydro such that Supplier shall be deemed to have forever transferred and assigned to Hydro any and all right, title and interest it may have therein, whether intellectual property or otherwise.

8. Indemnity

8.1 Intellectual Property Indemnity. Supplier shall indemnify and hold Hydro harmless from all costs, expenses, liabilities and claims of infringement against Hydro alleging that the manufacture, purchase, use or sale of any Deliverable infringes or violates any third party’s patent, copyright, trademark or trade secret. In such an event, Supplier, at its option and expense, shall: (a) reimburse Hydro for any costs incurred at Supplier's written request relating to such claim; and (b) pay damages and costs incurred by Hydro that are attributable to such claim (including, without limitation, reasonable attorneys’ fees).

In addition, Supplier shall either (i) procure for Hydro the right to continue using such Deliverables, or (ii) replace or modify any such Deliverables provided or to be provided to be free of the infringement provided that such replacement or modified Deliverables materially conforms to the Specifications. If Supplier is unable to achieve either of the options set forth above despite its reasonable best efforts, it shall require return of such Deliverables freight collect to Supplier and promptly refund to Hydro the purchase price, plus all reasonable shipping, storage and associated costs.

8.2  Third Party Indemnity.

Supplier will indemnify, hold harmless, and defend Hydro from and against any and all injuries, liabilities, damages, losses, costs and expenses (including, but not limited to, reasonable legal and other professional fees) payable to third parties to the extent based upon any liability claim related to the Deliverables 

or other claim arising from or relating to Supplier's negligence, willful misconduct, violation of law or failure to perform its obligations under the contract, provided that Hydro (i) promptly notifies Supplier of the claim, (ii) provides Supplier with all reasonable information and assistance, at Supplier's expense, to defend or settle such a claim, and (iii) grants Supplier the right to jointly control the defense or settlement of such claim. Supplier shall not settle any such claim, without Hydro's prior written consent. Hydro reserves the right to retain counsel, at Hydro's expense, and to participate in the defense and settlement of any such claim.

8.3 Breach of Contract.

Supplier shall indemnify and hold Hydro harmless from all claims and all direct, indirect or consequential liabilities (including, without limitation, loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including, without limitation, legal and other professional fees and expenses) incurred by Hydro as a result of breach or negligent performance or failure or delay in performance of the contract by Supplier.

8.4 Survival of Rights and Obligations upon Cancellation.

Sections 3 (General Terms and Conditions), 4 (Prices and Payment), 6 (Representations and Warranties), 7 (Confidentiality), 8 (Indemnity) and 9 (General) shall survive cancellation, termination or expiration of a PO or the contract.

9. Data Privacy

Personal data which the Supplier obtains from Hydro shall be treated confidentially and may only be used by the Supplier for the purposes related to the initiation and execution of any PO or the contract. The term “Personal Data” shall mean all data related to an identified or identifiable natural person. For information related to Hydro's handling of personal data, please see https://www.hydro.com/en/data-protection-in-hydro/privacy-statement/. The link leads to Hydro’s privacy statement and Binding Corporate Rules which are established to comply with applicable data protection legislation, including the EU General Data Protection Regulation.

10. General 

10.1 

Any amendments to these Terms shall be agreed in writing by the parties. POs submitted by Hydro may vary these Terms if so expressly provided.

10.2 

Any notice under the contract shall be in writing and shall be sent via courier service or by mail (internationally recognized overnight commercial courier, certified or registered), or by facsimile confirmed by mail to the person specified on the PO (provided that a copy is contemporaneously sent by one of the alternate means set forth in this Section 9.2). A copy of any notice to Hydro shall contemporaneously be sent to: Norsk Hydro, P.O. Box 980, 0240 Oslo, Norway, Attn.: Corporate Legal Department.

 10.3  

Neither party shall be responsible to the other party for non-fulfillment or delays or additional costs in fulfillment of its obligations under any PO due to causes over which that party has no control (“Force Majeure”). Such causes include, without limitation, wars, hostilities between states, terrorist acts, national strikes and lock-outs, national or international transport strikes, embargoes, natural disasters, storms, fires, explosions or other similar contingencies beyond the reasonable control of a party, which leads to the inability of such party to perform its obligations under the contract. Either party who desires to declare Force Majeure shall notify the other party in writing of the reasons for non-fulfillment or delays in fulfillment of its obligations under the contract promptly upon the occurrence of the event, and shall propose to the other party remedies for such non-fulfillment or delays. If the Force Majeure event continues beyond thirty (30) days, either party may terminate the any PO or the contract in writing immediately, without prejudice to any other rights or remedies it may have.

10.4 

The contract, nor any rights or obligations arising under any PO or the contract, are assignable by either party without the prior written consent of the other party. Notwithstanding the foregoing, however, Hydro may assign the contract, or any such rights and obligations under the contract, without the prior consent of Supplier if the assignment arises out of a corporate merger, reorganization, consolidation or sale of substantially all assets of the Hydro, provided that such assignee assumes all obligations and liabilities of Hydro hereunder. Subject to the foregoing, the provisions of any PO and the contract shall be binding upon and inure to the benefit of the parties hereto and their permitted respective successors and assigns.

10.5

Supplier may only use a sub-contractor to provide the Deliverables, or parts thereof, with Hydro’s separate specific prior written consent. A failure to secure such prior consent before using a sub-contractor shall constitute material breach of contract by Supplier. Supplier shall be liable for the performance, or omissions, of its sub-contractors as if they were its own performance or omissions, regardless of Hydro’s consent to Supplier’s use of the sub-contractor.