General terms and conditions
General Terms and Conditions, 2017
In these General Terms and Conditions of Agreement (hereinafter referred to as the "Terms and Conditions”), the following terms shall have the following meaning:
Acceptance Protocol means the document to be issued and signed by both parties, which shall constitute evidence that the Equipment delivered and /or Services provided have been found to be in accordance with an Agreement (or any to be defined "Protocol”);
Agreement means the specific written sales and/or service agreement or acknowledgement of order, with appendices, between the Supplier and the Buyer, including these Terms and Conditions, which form an integral part thereof;
Buyer means the party with whom the Supplier entered into an Agreement;
Contract Price means the price to be paid to the Supplier in connection with the delivery of Equipment and/or provision of Services under the Agreement;
Equipment means any Equipment the Supplier has undertaken to supply, including software and/or hardware, spare parts, certificates and/or documentation required for proper Performance;
Performance means the provision of Services and/or the supply of Equipment by the Supplier;
Personnel means all personnel either directly or indirectly employed or hired by the Supplier, including representatives of the Supplier;
Services means any services like jobbing, erection, installation, commissioning, technical assistance, inspection, supervision, advice, repair, overhaul and/or maintenance that the Supplier has undertaken to provide, whether or not subsidiary to delivery of Equipment and regardless of their appellation;
Supplier means any supplier of Equipment and/or Services under an Agreement.
2.1 These Terms and the Agreement can be amended and supplemented only if such amendment or supplement has expressly been agreed upon as such in writing.
2.2 The Agreement replaces all prior oral and written agreements with respect to the subject matter of the Agreement.
2.3 Supplier’s offers are without engagement.
2.4 The Agreement is conditional on obtaining of all relevant export licences.
2.5 The Supplier shall be entitled to subcontract or assign any part of its rights and obligations out of the Agreement.
- Obligations of the Buyer
3.1 The Buyer warrants that the Supplier will be enabled to commence and effect Performance outside Supplier’s works immediately upon arrival of Supplier’s Equipment or Personnel and without interruption or hindrance. For this purpose, the Buyer shall, before the arrival of Supplier’s Equipment or Personnel, make all the arrangements necessary -whether or not expressly agreed upon- to ensure that the work can commence at the agreed date and can be carried out without interruption or hindrance.
3.2 The Buyer warrants that all documents and licences required in connection with the import and export of the Equipment and/or the stay of Supplier’s Personnel in the country and at the premises of the Buyer shall be available at the time of arrival of the Equipment and/or Personnel.3.3The Buyer shall, at no charge, provide the Supplier timely with any information reasonably required in connection with the Agreement, such as - but not limited to - relevant technical documentation, logs, inspection reports and import licences.
- Intellectual property rights and confidential information
4.1 The Buyer acknowledges that any and all intellectual property rights (including without limitation rights to know-how) in the Equipment, the Services and any drawings, calculations or specifications and the like, supplied - directly or indirectly - by, or originating from, the Supplier ("Results") shall exclusively be vested in the Supplier. In as far as intellectual property rights in the Results or improvements thereof are, by operation of law or otherwise, vested in the Buyer, the Buyer hereby irrevocably, unconditionally and without limitation or payment being required, assigns and transfers to the Supplier all such (existing and future) intellectual property rights, which assignment and transfer is hereby accepted (in advance) by the Supplier and the Buyer hereby waives its moral rights related thereto in respect of the Supplier and its successors in title and Buyer undertakes to do all that is required to still establish such assignment, transfer and waiver.
4.2 The Buyer warrants that the Buyer shall respect the intellectual property rights of the Supplier and that the Buyer shall not (partly) use the Results otherwise than provided for in the Agreement.
4.3 Any confidential information with respect to the Supplier, its Buyers, its business and the Results, as well as any information with respect to the improvements to the Results and any (other) information provided to the Buyer by the Supplier in the course of a Agreement that has a confidential nature, shall be treated as such and shall be kept strictly confidential and not be used by the Buyer for any other purpose than he execution of the relevant Agreement.
4.4 Upon first request of the Supplier, the Buyer shall return to the Supplier all confidential information and all drawings, calculations and specifications and other documents or data originating from Supplier without retaining any copies thereof.
- Terms for Performance
5.1 Time or periods of Performance shall be stated in the Agreement. Any time or period of Performance that differs from the Agreement shall only be binding if they have been agreed upon by the Supplier in writing. If Performance is to take place during a specific and fixed period of time by the expiry of which Performance is deemed to be completed, any such period will not commence until all contractual obligations of the Buyer have been met, all payments due have been made, security desired by the Supplier has been put up and/or any other preconditions have been fulfilled.
5.2 If Performance is delayed due to any act or omission of the Buyer or the Buyer failing to perform any of the obligations mentioned in article 3 of these Terms and Conditions, the Supplier is entitled to extend the time of Performance with reasonable period which is at least equal to the additional period of time caused by such delay. Furthermore, it is expressly agreed that the Supplier shall have the right to extend the time of Performance in the event that the Supplier has not received the advance payment (or another contractual payment) as stipulated in the Agreement, or the Buyer has not provided security that complies with the requirements in the Agreement. Any additional costs arising from delay which is attributable to the Buyer shall be borne by the Buyer.
5.3 In case the Supplier fails to Perform in time due to reasons attributable only to the Supplier, a grace period of two weeks shall apply. Thereafter, the Buyer shall be entitled to claim liquidated damages of 0,5% for each completed week of delay, calculated on the value of the Services. Liquidated damages shall in no case exceed 5% of the value of the Services. Liquidated damages shall only be due if the Buyer proves that the delay caused damage and the amount of the loss suffered can be substantiated accordingly. Liquidated damages shall be the Buyer's only remedy for losses incurred as a result of delay in Performance. Damages other than the said liquidated damages are explicitly excluded.
5.4 In case of any occurrence, either foreseeable or not, beyond the reasonable control of the Supplier or any of his sub-Suppliers, which prevents the Supplier from effecting Performance ("Force Majeure”), the date of Performance will be extended with at least the period of Force Majeure. Cases of Force Majeure are in particular -but not limited to- fire, war or warlike acts, riots, insurrection, mobilisation, floods, earthquakes and other natural disasters, epidemics, quarantine measures, strikes, lockouts, requisitioning, restriction of foreign currency transfer, transport restrictions, and restrictions in the issue of permits for the Personnel, importation and exportation of Equipment, tools and/or materials.
5.5 The Buyer shall have no right to reject or refuse acceptance of Equipment due to minor defects which do not prevent the normal operation of the Equipment, provided that the Supplier agrees to remedy such defects after the delivery of the Equipment, in compliance with the Agreement.
5.6 In the event that dispatch or collection of the Equipment at the designated place of delivery is delayed for reasons beyond Supplier’s control, the Supplier shall be entitled to store the Equipment at the expense of the Buyer in a warehouse at Supplier’s choice. Upon storage, delivery shall be deemed completed and the risk for the Equipment shall transfer to the Buyer accordingly.
5.7 Any alteration of regulations either by Governments or Classification Societies after the moment on which the Supplier and the Buyer entered into the Agreement, can never be a ground for liability of the Supplier
5.8 General terms of service and working hours
(1) Performance shall be considered completed when either
− the Supplier has notified the Buyer that the provision of Services has been completed and the Protocol of Acceptance was signed; or
− eight days have elapsed from the time the Supplier notified the Buyer as above and Buyer has neglected to inspect the Services provided within this time and/or failed to notify Supplier in writing of its approval or rejection,
− the Buyer commences the use or the operation of the Equipment on which the Services were provided.
(2) Unless expressly otherwise agreed upon in the Agreement, Services shall be provided during a working week which shall be in accordance with normal industry practice. A working day is deemed to be a man day.
(3) Hours worked outside these normal working hours, on Sundays or on official holidays will be charged separately as overtime.
5.9 Transfer of risk
(1) In so far as no special agreement is made, the risk of the accidental destruction or deterioration of the Services as a whole or of self-contained parts will be transferred to the Buyer at the moment the Supplier notifies the Buyer of the completion of the provision of the Services.
(2) Objects and materials made available by the Buyer, will be taken in charge by the Supplier in accordance with the scope of agreements made for this purpose. The risk of accidental destruction or deterioration of these objects and materials shall remain with the Buyer; for damage to these objects and materials for which the Supplier is responsible, article 8 shall apply.
(3) Should the provision of Services or the trial run be interrupted, stopped or delayed for reasons beyond Supplier’s control, the risk of accidental destruction or deterioration of the Services provided shall be transferred to the Buyer during the period of the interruption, stoppage or delay.
- Retention of title
6.1 All Equipment delivered by the Supplier, shall remain Supplier’s property until the Buyer has fulfilled all its obligations under this Agreement and under any previous agreement of similar kind between the Buyer and the Supplier.
6.2 Until the moment property has been transferred to the Buyer in accordance with the previous paragraph, the Buyer shall take no actions (like combining the Equipment delivered, either in production or in storage, with other Equipment, or transferring, selling or encumbering them in any respect, or taking them into another country) which could jeopardise the unfettered execution of Supplier’s property right. Furthermore, the Buyer shall take any actions reasonably required in order to protect these rights, and shall immediately return the Equipment to the Supplier at first request.
7.1 Any warranty to be provided by the Supplier, shall be strictly limited to, at its discretion either repair or replace at its works or at local premises and during normal working hours, defects due to poor workmanship, use of defective materials or defective design, provided these defects have been reported to the Supplier in writing during the warranty period, within 7 days from the moment the Buyer became known or could reasonably have become known of the above mentioned defects.
7.2 Defective parts which have been replaced shall be made available to the Supplier upon request and shall be deemed property of the Supplier from the moment those parts are exchanged.
7.3 The warranty provided does not cover any defect due to or connected with: any materials or components or design provided by or on behalf of the Buyer, the negligence or other improper acts or omissions of the Buyer, its employees or agents or other third parties, improper installation and alterations carried out without Supplier’s prior written consent. In particular, warranty provided does not cover any defects that are caused by or connected with normal wear and tear, the use of unsuitable materials by the Buyer or which are caused by any use, maintenance, service or operation of the Equipment delivered or services provided, which is not in conformity with Supplier’s manuals, instructions or which is otherwise not in accordance with good engineering practice.
7.4 The warranty obligation does not include consequential costs, including -but not limited to- cranage, electricity, scaffolding, assisting work, docking, demounting, mounting and travel- and boarding costs of Supplier’s Personnel. If the warranty obligation has to be carried out at a location outside The Netherlands, the Supplier bears only the material costs and the costs of working time required under normal conditions, as would be incurred when the warranty obligation would have been carried out in the Netherlands. The Buyer shall bear the costs for travelling, travelling time, waiting time, day and night allowances, tariff expenses as well as costs that are to be borne by the Supplier according to the articles of these General Terms.
7.5 The warranty period ends 12 months after the date on which the Equipment have been taken into use; or the Protocol of Acceptance has been issued; or 18 months after delivery of the Equipment, whichever comes first.
7.6 No warranty shall be available for Equipment other than Equipment supplied and/or installed by the Supplier.
7.7 The Supplier warrants Performance to the best of its abilities. Any additional warranty with respect thereto is explicitly excluded.
7.8 Claims by the Buyer for damage to the object upon which the Services were performed, are governed by article 8 of these Terms and Conditions.
7.9 In case the Equipment or Services infringe any third party's intellectual property rights, Supplier’s sole obligation shall be to, at its discretion, either procure the right for the Buyer to continue to use the Equipment, or to alter the Equipment to make them non-infringing.
8.1 Supplier’s contractual liability is strictly limited to the warranty obligations as mentioned in article 7 of these Terms and Conditions.
8.2 Supplier’s liability shall in all instances be strictly limited to 10 percent the value of Services supplied by the Supplier under the Agreement, or the amount which is paid out under Supplier’s liability insurance policy, which ever is the lesser.
8.3 The Supplier shall in no event be liable for any economic losses and/or consequential damage, including -but not limited to- environmental pollution.
8.4 The Buyer shall indemnify the Supplier against any costs and damages in connection with claims of any third party against the Supplier in connection with the Agreement, in so far the Supplier would not be liable to the Buyer therefore.
- Payment Terms
9.1 Unless explicitly otherwise agreed upon, payments shall be made cash on delivery or by payment to a bank account designated by the Supplier within 30 days of the date of invoice and without any deductions, compensation for debts or withholding of any nature.
9.2 Upon reasonable request of the Supplier, the Buyer shall provide sufficient security for the total Contract Price. If the Buyer does not meet any such request of the Supplier, the Supplier shall have the right to wholly or partially terminate or suspend the Agreement by a written notification to the Buyer.
9.3 Any objections of whatever kind to invoiced amount shall be submitted to the Supplier in writing within 14 days of the date of the invoice, failing which the invoiced amount shall be deemed to have been accepted by the Buyer.
9.4 If the Buyer fails to perform any of the above payment obligations, the Buyer shall pay to the Supplier interest on the amount overdue at 2% per month or part of a month. In addition the Supplier may, after having notified the Buyer in writing, suspend Performance until payment is received with respect to the Agreement and/or the above payment terms.
- Suspension and Termination of Agreement
In case of Force Majeure, either party's sole remedy shall be termination of the Agreement after the period of Force Majeure has continued without interruption for a period of 6 months. The Supplier shall be entitled to either suspend Performance or to terminate the Agreement in case either the Buyer does not meet any of the obligations mentioned in these General Terms and Conditions, or the Supplier has reasons to believe that the Buyer shall not be able to meet these obligations.
- Applicable Law and Jurisdiction
11.1 This Agreement shall be governed by the laws of the Netherlands.
11.2 The Dutch Court is applicable.