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Semco Maritime - Page 1
GENERAL TERMS OF DELIVERY 1. 1.1 Application The following general terms of delivery shall apply in all cases where Semco Maritime in writing or any other way enters into an agreement with a joint contractor concerning sales, delivery of a service to a joint contractor or submits a quotation for any such service which is accepted and shall form the basis of an agreement. Any deviation from the present general conditions requires a written agreement between the parties. In the following Semco Maritime shall be referred to as “the seller” and the joint contractor as “the buyer”. Product information Information materials, price lists and similar documentation concerning products shall only be considered as binding to the extent the agreement makes specific reference to them. Drawings, technical documents and other descriptions All drawings, descriptions and other technical documents concerning the material or the production hereof transferred by the one party to the other before or after entering into the agreement shall be considered as the property of the party by whom they have been transferred. Drawings, descriptions, and other technical documents received may not be used for any purpose other than the purpose for which such material was transferred without prior permission from the party to whom it belongs. The above material may not be copied, reproduced, distributed to or in any other way be brought to the knowledge of a third party without the permission of the party to whom the material belongs. If the buyer has borrowed the material or the material has been transferred to him without being used in connection with the delivery and the application of the goods the material shall be returned to the seller. Notwithstanding the above the seller shall no later than the delivery date and free of charge provide the buyer with one or several copies of drawings and other technical documents sufficiently detailed for the buyer to carry out installation, start-up, operation and maintenance (including running repairs) of all parts of the material. The seller shall however be under no obligation to transfer drawings and documents, which form the basis of the production of the material or the spare parts. Handover test If a handover test has been agreed the test shall be performed at the place where the goods are produced unless otherwise agreed. If no technical requirements on the test are mentioned in the agreement, such test shall be performed in accordance with the practice of the industry concerned in the country where the goods are produced. The seller shall give the buyer such notice of the handover test that the buyer can be present. If the buyer has been given proper notification, a handover test may be performed even though the buyer is not represented. The seller shall keep a protocol of the handover test, which shall be sent to the buyer. The test protocol shall be considered as giving a correct description of the handover test performance and the result of such test unless proved otherwise by the buyer. 8.7 4.3 If the handover test proves, that the material is not in accordance with the agreement, the seller shall undertake to ensure that the material is brought into conformity with the agreement as soon as possible, after which a new handover test shall be performed at the buyer's demand. If the defect was insignificant, a new handover test can however not be demanded. Unless another distribution has been agreed, the seller shall pay all costs in connection with any handover test performed on the location where the materials are produced. The buyer shall however pay all his representatives' expenses in connection with such handover tests, including travel and accommodation expenses. Prices The seller's prices shall be based on the prices of raw materials, materials, purchased equipment, salary, exchange rates, etc. in force on the date of the quotation, and if the seller undertakes to arrange for transportation also freight, insurance and customs tariffs. The quotation price or the seller's prices in general shall neither include unspecified ancillary products and equipment nor assembly and installation costs unless specifically agreed. The seller shall be entitled to adjust the prices mentioned in section 5(1) corresponding to any price increases of raw materials, labour, purchased equipment, transportation, changes in tariff rates and other public duties, exchange rates, etc. 8.8 5.3 The seller's delivery shall only include performances, work, components, etc. specifically mentioned in the quotation and any confirmation of order. The seller reserves the right to replace the goods delivered or parts hereof with another similar delivery of the same quality and with the same function as specified in the agreement. All quoted prices are exclusive of VAT. Delivery Delivery shall be “Ex Works” unless otherwise agreed in writing. Interpretation of the delivery clauses shall be in accordance with current Incoterms at the date of the transaction. Installation If the seller undertakes to install the goods delivered, the buyer shall be obliged to arrange and pay for any public authorisation and to carry out any installation, fitting, etc. necessary in order for the installation to be carried out without any problems. At the request of the seller the buyer shall undertake to document that such aspects have been settled before installation. Any increased costs incurred by the seller as a result of delayed or defective delivery on the part of the buyer shall be paid by the buyer according to vouchers submitted by the seller. Any such costs shall be paid immediately on demand. In addition to installation a special written agreement shall be made in which the seller's and the buyer's performances respectively are defined, including time schedules and time limits for payment for installation. Unless otherwise specified in the parties' written agreement or the present general terms of delivery in the arrangement mentioned, the general conditions for delivery and installation of machinery and other mechanic, electronic equipment (NLM 94) or the current general regulations at the time of delivery replacing NLM 94 shall apply. B8-K-7.2-01/2/4 - 13.05.2008 General terms of delivery for Semco Maritime Page 1 of 2 8. 8.1 Time of delivery, delay The time of delivery shall be the date agreed by the parties. If no such agreement has been made, the seller shall deliver the goods as soon as possible in which case the buyer shall not be entitled to make a claim for delay. If instead of a specific time of delivery the parties have agreed on a period of time during which delivery shall take place, the date of the agreement shall be considered the start of such period. A precondition for the agreed times of delivery shall be that the seller has received the information necessary for the completion of the order in due time. If the seller is unable to make the delivery in time or if the buyer is able to substantiate that the seller is unable to make timely delivery, the seller shall notify the buyer hereof in writing without undue delay, indicating the cause of the delay and if possible the date on which delivery will be possible. The seller shall not be held liable for the delay of deliveries or parts thereof resulting from strikes, lockouts, restrictions, work accidents, transportation obstacles, fire, war, mobilisation or drafting for military service to a similar extent, currency restrictions, riots and civil commotion, transportation shortage, fuel restrictions, and other events out of the seller's control, and in cases involving circumstances which evidently make timely delivery unreasonable, where such circumstances are not attributable to conditions at the seller's. Furthermore, the seller shall assume no responsibility for delayed or defective materials and components ordered from subsuppliers if the delay is the cause of any of the above events. The time of delivery shall be extended to a similar extent to which any of the above events occur even though the cause of the delay occurs after the expiry of the time of delivery originally agreed. If the seller fails to give notice of the fact that delivery cannot take place on time in accordance with the above section 8 (3), the seller shall compensate the buyer for the additional expenditure incurred by him as a result of such lack of notification. The seller shall however not be held liable for any indirect loss including operating loss. If the seller is held liable, the extent of such liability shall be limited as indicated in section 8(7). If the seller fails to deliver the material in time, the buyer shall be entitled to claim liquidated damages from the date on which delivery should have taken place. The liquidated damages shall amount to 0.25% for each whole week of the delay, calculated on the basis of the part of the agreed purchase sum covering the part of the material which due to the delay cannot be taken into use as implied. The liquidated damages shall not exceed 5% of such basis of calculation and shall be payable on written demand from the buyer, but no sooner than the date on which the material is delivered in full or possibly on the date the buyer cancels the agreement in accordance with the following section 8(7). The buyer's right to claim liquidated damages shall lapse if he fails to make a demand hereof in writing within three months after the date on which delivery should have taken place. If the buyer is entitled to claim maximum liquidated damages and the material is still not delivered the buyer can by written notice to the seller demand delivery within a reasonable time limit of not less than 14 days. If the seller also fails to deliver within such fixed time limit and the delay is not due to circumstances for which the buyer can be held liable, the buyer shall be entitled to cancel the agreement by written notice to the seller concerning the part of the material which cannot be taken into use as implied. If the buyer thus cancels the agreement he shall furthermore be entitled to compensation for the loss inflicted on him due to the seller's delay if such loss exceeds the maximum liquidated damages to which he could be entitled in accordance with section 8(6). The total compensation including liquidated damages shall however not exceed 10% of the purchase sum for the part of the material covered by the cancellation. Furthermore, the buyer shall be entitled to cancel the agreement by written notice to the seller if he can prove that a delay will occur which according to the regulations shall entitle the buyer to claim maximum liquidated damages. In connection with such cancellation the buyer shall furthermore be entitled to compensation in addition to than liquidated damages at a maximum 10% in accordance with the above. The buyer shall not be entitled to make any claim due to the seller's delay apart from the above liquidated damages and cancellation with limited compensation in accordance with the above. This shall apply regardless of whether the seller has acted with gross negligence. The seller shall not be held liable for any indirect loss, including operating loss. If the buyer is unable to receive the material on the agreed date or if delay on his part seems likely, the buyer shall notify the seller hereof without undue delay indicating the cause of the delay and if possible the date on which receipt of the material will be possible. If the buyer fails to receive the material on the agreed date, he shall nevertheless be obliged to pay any amount conditional on delivery as if delivery of the material concerned had taken place. The seller shall ensure that such material is stored at the buyer's expense and risk. If requested by the buyer, the seller shall insure the material at the expense of the buyer but shall be under no obligation to do so unless a request for such insurance is made by the buyer and the premium is paid by the buyer on demand. The seller shall not be held liable for the stored material. Unless the buyer's failure to receive the material is due to the conditions described in the above 8(4), notwithstanding section 8(8) the seller shall request the buyer in writing to receive the material before a time limit decided by the seller. Should the buyer fail to do so due to causes for which the seller cannot be held liable, the seller shall be entitled to cancel the agreement by written notice to the buyer concerning the part of the material ready for delivery but which has not been delivered due to the buyer's failure to receive. Furthermore, the seller shall be entitled to claim an irrevocable guarantee for payment of material not yet delivered if the delay does not concern the entire material or the latest delivered part hereof. If the buyer fails to give such on-sight bank guarantee without legal proceedings for the timely payment of the purchase sum the seller shall be entitled to cancel the agreement concerning the aggregate delivery. In connection with all delay caused by the buyer the seller shall be entitled to compensation for any loss caused by the buyer's breach of contract. The compensation shall not exceed the part of the purchase sum which covers the part of the material for which the agreement is cancelled, unless no bank guarantee is given. In such case the compensation shall be equivalent to the purchase sum. The buyer shall furthermore pay all extra costs incurred by the seller in connection with the buyer's delay and the seller's subsequent cancellation of the agreement. 8.2 2. 2.1 8.3 3. 3.1 8.4 3.2 8.5 4. 4.1 8.6 4.2 4.4 5. 5.1 5.2 5.4 5.5 6. 6.1 8.9 7. 7.1 7.2 7.3 7.4