- These General Terms and Conditions shall apply to all supplies of products and services (hereinafter referred to as the Product) by Seasight Davits and/or any subsidiary/affiliate hereof (hereinafter referred to as SD), unless otherwise agreed in writing.
- These General Terms and Conditions shall apply together with any sales and/or supply contract between SD and the Purchaser (hereinafter referred to as the Contract).
In case of any discrepancy or inconsistency between the Contract and these General Conditions, the Contract shall prevail.
II PRODUCT INFORMATION
- Only information and data included in the Contract and/or the General Conditions are binding on SD. All information and data contained in product brochures, price lists or any other documents are binding only to the extent that they are by reference expressly incorporated into the Contract.
- Any trade term agreed in the Contract shall be construed in accordance with INCOTERMS 2010. Unless otherwise agreed in writing, all deliveries by SD shall be Ex Works (INCOTERMS 2010). Delivery by instalments and/or early delivery by SD shall be permitted unless otherwise agreed in writing in the Contract.
IV RULES AND REQUIREMENTS
- Any rules and/or requirements in respect of the Product laid down by any public or authority shall be expressly referred to in the Contract to be binding in the relationship between SD and the Purchaser.
The Purchaser bears the risk of any amendments to such rules and/or requirements after the conclusion of the Contract. If such rules and/or requirements are amended after the conclusion of the Contract, SD will at the request of the Purchaser but subject to price adjustments undertake reasonable endeavours to change the Product accordingly, but nothing herein shall be construed as an obligation on SD to make such change.
V TIME FOR DELIVERY, DELAY
- Delivery will be made no later than the date agreed in the Contract. If no time of delivery is agreed, delivery will be made on a date deemed reasonable by SD.
- If delivery by SD is delayed and SD receives notice hereof from the Purchaser or in the event that SD anticipates it will be unable to deliver the Product on the agreed date of delivery, SD shall forthwith notify the Purchaser, stating the reason of the delay, and fix an additional period of time of reasonable length during which delivery will be made. If SD does not deliver within this additional period of time, the purchaser may in writing demand delivery within a final reasonable period which shall not be less than one month. If SD does not deliver within this period of time, the Purchaser is entitled to terminate the Contract in whole or in part and claim damages for loss incurred up to an amount not exceeding 50 per cent of the agreed purchase price.
- The termination of the Contract by the Purchaser and the payment of damages in connection herewith up to an amount not exceeding 50 per cent of the agreed purchase price shall be the sole and exclusive remedies available to the Purchaser in case of delay on the part of SD. Any other remedy against SD based on such delay are excluded.
- If the Purchaser anticipates that he will not take delivery of the Product at the agreed time of delivery, he shall forthwith notify SD thereof stating the reason, and the time when he will be able to take delivery.
- If the Purchaser fails to take delivery at the agreed time of delivery, he shall pay such part of the purchase price as becomes due on delivery as if delivery had taken place. SD shall arrange for storage of the Product at the risk and expense of the Purchaser. This Clause shall not apply in case the Purchaser’s failure to take delivery is due to the occurrence of any Force Majeure or any breach of these General Conditions or Contract by SD.
- SD may in connection with refusal by the Purchaser to take delivery fix a final period of time of reasonable length for the Purchaser to take delivery. If the Purchaser refuses or fails to take delivery within such a period, SD may terminate the Contract in whole or in part. In addition, SD shall in any case be entitled to liquidated damages equal to 10 per cent of the purchase price. In the event that SD incurs a loss in excess of 50 per cent of the purchase price, the Purchaser shall indemnify SD for any such loss. This Clause shall not apply in case the Purchaser’s failure to take delivery is due to the occurrence of any Force Majeure or any breach of these General Conditions or Contract by SD.
- Unless otherwise agreed, the purchase price shall be paid 30 calendar days of the date of invoice.
- Notwithstanding the means of payment, payment shall not be deemed to have been affected before the full outstanding amount has been irrevocably credited to SD’s account. All banking charges and fees charged by Purchaser’s bank shall be paid by the Purchaser.
- If the Purchaser fails to pay on the agreed date, SD shall be entitled to interest from the day on which payment was due. The rate of interest shall be 1 per cent per month.
In any case of late payment by the Purchaser, SD may at its discretion suspend performance of any of its obligations under the Contract until full and effective payment has been affected. SD shall forthwith give notice of the suspension to the Purchaser.
- Any delay in payment by the Purchaser shall be deemed a fundamental breach entitling SD to terminate the Contract in accordance with the termination provision in such Contract and to claim damages for the direct loss incurred.
VII RETENTION OF TITLE
- All Products shall remain the property of SD until full and effective payment has been effected. The retention of title shall not affect the passing of risk.
VIII LIABILITY FOR NON-CONFORMITY
- Pursuant to Clauses 20 to 27 below, SD will remedy any non-conformity resulting from faulty design, materials or workmanship.
- The Purchaser shall examine the goods or cause them to be examined immediately after they arrive at the destination. Any non-conformity discovered shall be notified to SD in writing within one (1) month after the goods arrive. If the Purchaser fails give such notice the right to rely on any remedy is lost unless such non-conformity was not apparent. The notice shall specify the nature of the non-conformity.
- The Purchaser shall further give notice to SD of any non-conformity immediately after he discovers (which shall be no later than one (1) month after the discovery. The notice shall specify the nature of the non-conformity.
- The Purchaser looses the right to rely on any non-conformity and consequently the right to resort to any remedy for breach of contract if he fails to give SD written notice thereof within a period of one year of the date of delivery unless such non-conformity was not apparent.
- SD may at its discretion choose either to deliver a substitute Product or to repair any non-conforming Product.
If SD has not delivered a substitute Product or repaired any non-conforming Product within a reasonable time of having received notice of non-conformity, the Purchaser shall by notice to SD fix an additional period of time of reasonable length, which shall not be less than one month, for SD to deliver a substitute Product or repair the Product.
If SD fails to deliver a substitute Product or repair the Product within the additional period of time fixed by the Purchaser, the Purchaser shall be entitled to either:
- a) proportionate price reductionof the purchase price; or
- b) to terminate the contract provided that the non-conformity constitutes a fundamental breach by SD and in connection herewith to claim damages for the loss incurred by the Purchaser, always provided that such damages shall not exceed 50 per cent of the purchase price.
- A non-conforming Product or parts thereof which have been replaced by SD shall be made available to SD and shall be its sole property.
- SD is not liable for any non-conformity arising out of any use of the Product not in accordance with the conditions of operation provided for in the Contract or any other improper use of the Product.
- SD excludes liability for any non-conformity which is caused by lack of or faulty maintenance, incorrect installation or faulty repair by the Purchaser, or by any alteration carried out without SD’s written consent. SD is not liable for normal wear and tear or deterioration.
- The remedies provided for in Clauses 20 to 27 shall be the sole and exclusive remedies available to the Purchaser arising out of any non-conformity.
IX PRODUCT LIABILITY
- SD’s liability for death or injury to persons caused by defects in the Product, shall be limited to the liability prescribed by mandatory rules of the applicable national law and/or the laws of Denmark, if applicable.
- SD shall not be liable for any damage to real or to personal property caused by the Product after it has been delivered and whilst it is in the possession of the Purchaser unless such damage is caused by any defect which already existed prior to such delivery. SD shall not be liable for any damage to products manufactured by the Purchaser or to products of which the Purchaser’s products form a part, unless such damage is caused by the Product.
The mentioned limitations shall not apply if SD has acted in gross negligence or wilful misconduct.
- If SD incurs liability towards any third party for any damage as described in the preceding Clause, the Purchaser shall indemnify, defend and hold SD harmless, unless it can be established that the damage is caused by gross negligence or wilful misconduct by SD.
- If a claim for such damage and/or injury as described in the two preceding Clauses is lodged by a third party against one of the parties, the latter party shall forthwith inform the other party thereof in writing.
SD 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.
X FORCE MAJEURE
- Either party shall be entitled to suspend performance of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: fire, war (whether declared or not), military mobilization, insurrection, requisition,
seizure, embargo, restrictions in the use of power, any industrial dispute, any disturbances in deliveries by sub-contractors, any significant lack of raw materials and any other circumstances that are beyond the parties’ control and which affect the parties’ possibilities to fulfil the Contract (hereinafter “Force Majeure”).
Any circumstance referred to in this Clause whether occurring prior to or after the conclusion 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 conclusion of the Contract.
- A party claiming to be affected by Force Majeure shall forthwith notify the other party in writing on the intervention and on the cessation of any such circumstance.
- Regardless of what might otherwise follow from these General Terms and Conditions, either party shall be entitled to terminate the Contract by notice in writing to the other party if performance of the Contract has been suspended under Clause 32 for more than six months.
XI SUSPENSION OF PERFORMANCE
- Notwithstanding other provisions in these conditions regarding suspension, each party shall be entitled to suspend the performance of its obligations under the Contract, where it is becomes apparent from the circumstances that the other party will not perform its obligations. A party suspending its performance of the Contract shall forthwith notify the other party thereof in writing.
- Notwithstanding other provisions in these conditions regarding suspension, SD shall be entitled to suspend the performance if the Purchaser or any third party attempts to enforce instructions on SD personnel which are in direct contradiction of SD’s own instructions or policies in such way it prohibits SD’s personnel from performing the services correctly or safely.
XII CONSEQUENTIAL LOSSES ETC.
- There shall be no liability for either party towards the other party for any punitive, indirect, special, exemplary or consequential damages including but not limited to any consequential losses arising out of loss of production, loss of profit, loss of use, loss of earnings, loss of goodwill or loss of contracts.
XIII APPLICABLE LAW AND DISPUTES
- These Conditions, and any contractual relationship between SD and the Purchaser in connection herewith, shall be governed by laws of Denmark.
Any dispute or claim arising out of or in connection with these General Conditions and any contractual relationship between SD and the Purchaser in connection herewith shall be settled in accordance with the arbitration rules of the International Chamber of Commerce by three arbitrators. Each party shall appoint one arbitrator and the International Chamber of Commerce shall appoint a third arbitrator who shall be the chairman of the arbitration tribunal. If a Party has not appointed an arbitrator within thirty days of having requested or received notice of the arbitration, such arbitrator shall be appointed by the International Chamber of Commerce
The decision of the arbitrator shall be final and binding upon the parties. The place of arbitration shall be Copenhagen, Denmark. The language of the arbitration shall be the English language.