VIKING LIFE-SAVING EQUIPMENT - GENERAL CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES
1.These General Conditions shall apply to all supplies of products and services (hereinafter referred to as the Product) by VIKING LIFE-SAVING EQUIPMENT A/S and/or any subsidiary/affiliate hereof (hereinafter referred to as VIKING), unless otherwise agreed in writing.
2. These General Conditions shall apply together with any sales and/or supply contract between VIKING 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
3. Only information and data included in the Contract and/or the General Conditions are binding on VIKING. 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.
4. Any trade term agreed in the Contract shall be construed in accordance with INCOTERMS 2000. Unless otherwise agreed in writing, all deliveries by VIKING shall be Ex Works (INCOTERMS 2000). Delivery by instalments and/or early delivery by VIKING shall be permitted unless otherwise agreed in writing in the Contract.
IV RULES AND REQUIREMENTS
5. 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 in order to be binding in the relationship between VIKING and the Purchaser. The Purchaser bears the risk of any amendments to such rules and/or requirements after the conclusion of the Contract. In the event that such rules and/or requirements are amended after the conclusion of the Contract, VIKING 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 VIKING to make such change.
V TIME FOR DELIVERY, DELAY
6. 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 VIKING.
7. In the event that delivery by VIKING is delayed and VIKING receives notice hereof from the Purchaser or in the event that VIKING anticipates that it will be unable to deliver the Product on the agreed date of delivery, VIKING 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 Viking 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 VIKING 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 10 per cent of the agreed purchase price.
8. The termination of the Contract by the Purchaser and the payment of damages in connection herewith up to an amount not exceeding 10 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 VIKING. Any other remedy against VIKING based on such delay are excluded.
9. If the Purchaser anticipates that he will not take delivery of the Product at the agreed time of delivery, he shall forthwith notify VIKING thereof stating the reason, and the time when he will be able to take delivery.
10. 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. VIKING shall arrange for storage of the Product at the risk and expense of the Purchaser.
11. VIKING 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, VIKING may terminate the Contract in whole or in part. In addition VIKING shall in any case be entitled to liquidated damages equal to 10 per cent of the purchase price. In the event that VIKING incurs a loss in excess of 10 per cent of the purchase price, the Purchaser shall indemnify VIKING for any such loss.
12. Unless otherwise agreed, the purchase price shall be paid 30 calendar days of the date of invoice.
13. Notwithstanding the means of payment, payment shall not be deemed to have been effected before the full outstanding amount has been irrevocably credited to VIKING's account. All banking charges and fees charged by Purchasers bank shall be paid by the Purchaser.
14. If the Purchaser fails to pay on the agreed date, VIKING 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 VIKING may at its discretion suspend performance of any of its obligations under the Contract until full and effective payment has been effected. VIKING shall forthwith give notice of the suspension to the Purchaser.
15. Any delay in payment by the Purchaser shall be deemed a fundamental breach entitling VIKING to terminate the Contract and to claim damages for the loss incurred.
16. Where goods are ordered by an agent on behalf of a ship-owner or another principal, whether named or unnamed, the agent irrevocably and unconditionally guarantees to VIKING a due performance by the principal of the obligations of the principal on the following terms: Whenever the principal makes default in the performance of any obligations, the agent shall, within 7 days of written notice, perform the same. The agent hereby irrevocably waives any right to require proceedings first against the principal for the enforcement of the obligations as towards VIKING.
VII RETENTION OF TITLE
17. All Products shall remain the property of VIKING until full and effective payment has been effected. The retention of title shall not affect the passing of risk.
18. Viking has a pledge and a possesory lien in the Products handed over to Viking for maintenance and/or service by the Purchaser or its agent for all claims for payment for work and services performed by Viking with respect to the said Products. If settlement of VIKING’s outstanding accounts is not made in due time, the title to the Products shall pass to Viking, who shall then deduct the value of the Products in question from its outstanding account with the Purchaser.
VIII LIABILITY FOR NON-CONFORMITY
19. Pursuant to Clauses 20 to 27 below, VIKING will remedy any non-conformity resulting from faulty design, materials or workmanship.
20. The Purchaser shall examine the goods or cause them to be examined immediately after they arrive at the destination. Any non-conformity discovered or which ought to be discovered during this examination shall immediately and in no event later than one week after the goods arrived at the destination be notified VIKING in writing. If the Purchaser fails give such notice the right to rely on any remedy is lost. The notice shall specify the nature of the non-conformity.
21. The Purchaser shall further give notice to VIKING of any non-conformity immediately after he discovers or ought to have discovered the non-conformity. The notice shall specify the nature of the non-conformity.
22. 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 VIKING written notice thereof within a period of one year of the date of delivery.
23. VIKING may at its discretion choose either to deliver a substitute Product or to repair any non-conforming Product. If VIKING 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 VIKING fix an additional period of time of reasonable length, which shall not be less than one month, for VIKING to deliver a substitute Product or repair the Product. If VIKING 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 reduction not exceeding 10 per cent of the purchase price; orb) to terminate the contract provided that the non-conformity constitutes a fundamental breach by VIKING and in connection herewith to claim damages for the loss incurred by the Purchaser, always provided that such damages shall not exceed 10 per cent of the purchase price.
24. A non-conforming Product or parts thereof which have been replaced by VIKING shall be made available to VIKING and shall be its sole property.
25. VIKING 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.
26. VIKING 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 VIKING’s written consent. VIKING is not liable for normal wear and tear or deterioration.
27. 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
28. VIKING'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.
29. VIKING 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. VIKING 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.The mentioned limitations shall not apply if VIKING has acted in gross negligence or wilful misconduct.
30. If VIKING incurs liability towards any third party for any damage as described in the preceding Clause, the Purchaser shall indemnify, defend and hold VIKING harmless, unless it can be established that the damage is caused by gross negligence or wilful misconduct by VIKING.
31. 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. VIKING 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
32. 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.
33. 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. If Force Majeure prevents the Purchaser from fulfilling his obligations, he shall indemnify VIKING for any expenses incurred in securing and protecting the Product and other expenses due to the suspension of the contractual obligations.
34. 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 has been suspended under Clause 32 for more than six months. XI ANTICIPATED NON-PERFORMANCE
35. 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. XII CONSEQUENTIAL LOSSES ETC.
36. 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
37. These Conditions, and any contractual relationship between VIKING and the Purchaser in connection herewith, shall be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) and with regard to issues not governed by CISG by the substantive laws of the sellers place of business. Any dispute or claim arising out of or in connection with these General Conditions and any contractual relationship between VIKING and the Purchaser in connection herewith shall be settled in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration) by a sole arbitrator appointed by the Institute in accordance with the said rules. The decision of the arbitrator shall be final and binding upon the parties. The place of arbitration shall be at Sellers place of business. The language of the arbitration shall be the English language. Notwithstanding the foregoing, VIKING may at its discretion require any such dispute to be settled before any national court of a country in which the Purchaser maintains a place of business.d text