General terms of Sale and Delivery
1. Application
These General Terms of Sale and Delivery (hereinafter referred to as “Terms”) shall apply to all supplies and deliveries of Equipment made by NOVENCO MARINE & OFFSHORE A/S (hereinafter referred to as “NOVENCO”) unless otherwise explicitly agreed and confirmed in writing. No terms and conditions contrary to the Terms are binding on NOVENCO unless specifically accepted in writing.
“Agreement” shall mean NOVENCO’s order confirmation with attachments (technical specifications, delivery schedule, arrangement drawings, marked-up drawings, approval documentation, certificates, hydraulic calculations, installation plan, product literature, test reports, shipping information, list of documentation, etc.) and these Terms.
“Equipment” shall mean the equipment explicitly described in the Agreement.
2. Product information
All information and data contained in general product information material and price lists as well as other information from NOVENCO shall be binding only to the extent explicitly stated in the Agreement.
3. Drawings and Descriptions
All drawings and technical documents relating to the Equipment or to the production of same, which one party hands over to the other party before or after entering into the Agreement shall belong to the submitting party. It cannot be used for any other purposes than for the installation, start-up, operation and maintenance of the Equipment without the consent of that party.
Apart from these applications, the documents mentioned may not, without the consent of the submitting party, be used, copied, reproduced or handed over to a third party or in any other way be brought to the knowledge of a third party.
4. Tests
4.1 FAT tests (Factory Acceptance Test)
Failing agreement to the contrary, FAT tests shall be carried out at NOVENCO’s production sites within normal working hours. If technical requirements for the tests are not specified in the Agreement, these shall be carried out in accordance with the usual practice and procedures of NOVENCO.
If FAT tests are to be carried out at a place selected by the purchaser, the purchaser shall bear all cost incurred (e.g. freight, insurance, packing, container leasing etc.) for transporting the Equipment to such place and returning the Equipment to NOVENCO’s production site as well as all traveling and accommodation expenses for the representatives of NOVENCO.
4.2 Start-up and Commissioning
Start-up and commissioning of Equipment are not included in the stated price, unless otherwise is explicitly mentioned in the Agreement.
5. Delivery
Delivery clauses agreed upon are construed in accordance with the Incoterms 2010.
Unless agreed otherwise, delivery terms is always EXW – Ex Works
5.1 Packaging
Unless agreed elsewhere in the packaging materials are excluded from the system price and will be invoiced separately.
5.2 Freight Cost
Unless agreed elsewhere in the freight are excluded from the system price and will be invoiced separately.
5.3 Custom Clearance
All cost related to custom handling will follow Incoterms 2010
6. Payment
The purchaser shall pay progress payments, i.e. one third on conclusion of the Agreement and one third on receipt by the purchaser of NOVENCO’s notification that the bulk of Equipment to be supplied is ready for delivery. The balance shall be paid on delivery of the Equipment.
Failing explicit agreement to the contrary, payments shall take place into a bank account specified by NOVENCO. The purchaser is not entitled to set off any amount unless he has title for the claim or the claim is undisputed by NOVENCO.
In the event that the purchaser does not settle any outstanding amount in due time NOVENCO is irrespective of whether NOVENCO at its discretion decides to maintain or cancel the purchase entitled to suspend all deliveries to the purchaser until all amounts due have been settled.
Further, NOVENCO shall be entitled to claim a penalty interest of 2% per commenced month counting from the due date and to add any expenses incurred for dunning and administration fees.
All amounts fall due for payment on the date of invoice current month plus 25 days.
NOVENCO is at any time entitled to set off claims made by the purchaser against NOVENCO against NOVENCO’s receivable on the purchaser.
Taxes, duties or levies etc. imposed on the Equipment shall be paid by the purchaser.
7. Retention of Title
The Equipment sold under the Agreement shall remain the property of NOVENCO until paid for in full, to the extent that such retention of title is valid.
8. Delay of Delivery Time
8.1 Delayed Delivery
NOVENCO will to the extent possible deliver purchased Equipment as at the agreed delivery date. Irrespective of the reason for a delay of delivery, however, the Purchaser has no remedies for breach against NOVENCO in this respect and is not entitled to raise any claims for indirect losses or other consequential losses according to clause 11.
8.2 Purchaser’s Default
If the purchaser cannot receive the Equipment on the date of delivery agreed, he shall give NOVENCO a written notice to this effect without delay, stating the expected delivery time. NOVENCO is entitled to raise the purchase amount by 0.5 % for each full week of delay, the increase in price being calculated on the share of the purchase amount covering the part of the Equipment not accepted, however, not exceeding 7.5 % of the basis of calculation. NOVENCO will after the date of delivery agreed store the Equipment at the purchaser’s risk and expense until the expected delivery time. However, upon NOVENCO’s written notice to the purchaser that NOVENCO is no longer able to store the Equipment the purchaser shall provide or arrange for suitable storage within [10 working days from receipt] and assume all costs and risks therewith. Equipment having been stored for more than 12 weeks will at the expense of the purchaser be examined before dispatch to the purchaser.
9. Defects
9.1 Warranty for Shortcomings
NOVENCO shall at its discretion replace or repair any parts that may prove to be unsuitable owing to errors in design, faulty materials, or workmanship ascertained within 12 months from the date when the Equipment is put into service, however, a maximum of 18 months from the date of delivery agreed, always provided that the Equipment is properly stored under roof and in dry environment.
Replacement parts will be delivered ex-works. Failing agreement to the contrary, the purchaser shall bear the costs of removing the defective part and the fitting of a new part as well as the traveling and accommodation expenses if repair is to be carried out at a place selected by the purchaser.
For parts replaced or repaired by a NOVENCO fitter, NOVENCO shall undertake the same warranty as for the original Equipment for a period of 12 months from replacement or repair. This does not apply to the other parts of the Equipment.
Defective parts that have been replaced shall on demand be placed at the disposal of NOVENCO freight prepaid by the purchaser and become NOVENCO’s property.
Defects and errors in the Equipment must only be repaired by a third party with the prior written consent of NOVENCO. NOVENCO’s warranty does only apply if a NOVENCO fitter has supervised and approved the final installation of the Equipment.
Failing agreement to the contrary, NOVENCO takes no responsibility for the systems connected to in- and outlet of the unit or for their effect on the unit, unless these systems were supplied and installed by NOVENCO.
NOVENCO’s warranty does not cover the consequences of any kind of corrosion, ordinary wear, caused by dust particles, the use of other lubricants than those prescribed in NOVENCO’s Operating Instructions, misusage, and the like.
The purchaser is not entitled to cancel the purchase or claim damages due to defects cf. clause 11 if NOVENCO remedies the defects within reasonable time.
9.2 Complaints
The purchaser shall upon delivery promptly inspect the Equipment and notify NOVENCO in writing of any claims. A complaint must be made without undue delay after the defect was or should have been found. A failure to transmit in writing any complaint to NOVENCO within thirty days after the defect was or should have been found shall be deemed a waiver of such claim.
If the purchaser has complained of a defect and it turns out that no defect can be demonstrated for which NOVENCO can be held responsible, NOVENCO shall be entitled to receive a compensation for the work and costs caused by the complaint.
10. Product Liability
10.1 Personal Injury
NOVENCO shall only be liable for personal injury if the injury is proved to be due to the negligence and default of NOVENCO or others for whom NOVENCO is liable.
10.2 Damages to Movables or Immovables
NOVENCO shall not be liable for damage to immovables or movables occurring while the Equipment is in the possession of the purchaser. Neither shall NOVENCO be liable for damage to products manufactured by the purchaser or to products of which the purchaser’s products form a part. As regards damage to immovables or movables meant for commercial use it must be proved that NOVENCO or any other person(s) for whom NOVENCO is responsible is guilty of gross negligence.
10.3 Product Liability towards a third Party
If NOVENCO should incur product liability towards a third party, the purchaser shall be obliged to indemnify NOVENCO to the same extent as NOVENCO’s liability is limited pursuant to the stipulations of clauses 10.1-10.2 and 11.
10.4 Third Party’s Claim
If a claim for damages as described in this clause 10 is lodged by a third party against one of the parties, the latter shall forthwith inform the other party thereof. NOVENCO and the purchaser shall mutually be obliged to let themselves be summoned to the court or arbitral tribunal, which examines claims against either of them based on damage or loss alleged to have been caused by the Equipment. The liability as between NOVENCO and the purchaser shall always be settled in accordance with clause 10 and 11.
10.5 Product liability Insurance
NOVENCO’s product liability cannot exceed the insurance cover according to Certificate of NOVENCO’s product liability insurance in force at any time, including the maximum amount allowed in the product liability insurance.
11. Damages and Consequential Damages
NOVENCO shall irrespective of the alleged basis (defects, product liability etc.) of a claim in damages only be liable in damages due to gross negligence. Any compensation payable for direct damages can under no circumstances exceed the invoice price for the Equipment in question.
NOVENCO shall under no circumstances be liable for any indirect damage or loss, such as but not limited to, operating losses of every description, loss of earnings, loss of time, loss of profit, business interruption or punitive damages or fines.
NOVENCO is furthermore not liable for losses suffered due to recalling and replacing Equipment that has been resold.
12. Exemption from Liability (Force Majeure)
The following circumstances (“Force Majeure”) shall involve exemption from liability and shall suspend the obligation to fulfil the Agreement and extend the timeframe for fulfilment with such period of time as the circumstances prevail provided that these prevent or prohibit fulfillment of the Agreement, render fulfilment unreasonably difficult or onerous, or endangers or jeopardizes the life or health of a party’s employees or contractors: labour disputes, such as strike, lock-out and boycott whether general or exclusively affecting a party, and any other circumstance beyond the control of the parties, such as fire, war, insurrection and civil commotion, terrorism, mobilization or calling up for military service, requisition, seizure, trade and currency restrictions, lack of means of transport, scarcity of materials, manpower and electricity, breakdown of machinery, natural catastrophes, pandemics and epidemics, adverse weather conditions and defects or delays in deliveries by sub-suppliers attributable to one or more of the circumstances mentioned in this clause 12.
The party who wants to plead relief owing to force majeure shall without delay notify the other party in writing about the occurrence and the expected cessation of such circumstances.
Any of the parties may terminate the Agreement by a notice in writing to the other party, if fulfilment of the Agreement is affected by the prevalence of Force Majeure circumstances for more than 6 months. Neither party may advance claims irrespective of the basis thereof against the other party due to termination in accordance with this clause 12.
In the event that NOVENCO’s sale of the Equipment might be covered by Council Regulation (EC) No 1334/2000 with later amendments NOVENCO reserves its right to cancel the purchase in accordance with this clause 12.
12.A
On 30 January 2020, WHO declared the current outbreak of Covid-19 (the “COVID-19 Outbreak”) a Public Health Emergency of International Concern (PHEIC). The parties hereby confirm to be aware of the COVID-19 Outbreak and that the COVID-19 Outbreak and its continuation might significantly adversely impact the parties’ performance under this Agreement. Now therefore, the parties agree as follows:
The parties agree that any obstacle resulting from the COVID-19 Outbreak and its continuation are to be considered as Force Majeure circumstances at the time of conclusion of this Agreement. Thus, the parties agree that the COVID-19 Outbreak and its continuation shall be considered as Force Majeure as per clause 12 of this Agreement without further notice. Unless otherwise provided for in this clause 12(a), the provisions of the Force Majeure clause as per clause 12 shall apply.
Notwithstanding the foregoing, lack of money and/or failure to effect payment when due can never be held to be a result of the COVID-19 Outbreak and its continuation.”
13. Intellectual Property Rights
NOVENCO does not carry any responsibility for violation of any third party’s intellectual property rights at the use of the Equipment.
14. Disputes and Law Governing the Agreement
14.1 Choice of law
Danish Law shall apply to these Terms.
14.2 Dispute resolution
In the event of any disputes between the parties relating to the Equipment delivered under the Agreement, any action taken by the purchaser against NOVENCO shall be brought before an arbitration tribunal established in accordance with the rules of procedure of the Danish Institute of Arbitration. If NOVENCO should find it necessary to institute proceedings against the purchaser, such action may, at NOVENCO’s option, be brought before the Maritime and Commercial Court in Copenhagen or before an arbitration tribunal established in accordance with the rules of procedure of the Danish Institute of Arbitration. The seat of any arbitration tribunal shall be Næstved, Denmark. The language of the arbitration shall be English.