General terms & Conditions
MULTIDOCKER GENERAL TERMS & CONDITIONS (Direct Sales)
For the supply of Machinery and other Mechanical Equipment
1. These conditions (“Conditions”) shall apply when the parties agree in writing or otherwise thereto. Deviation from the Conditions shall not apply unless agreed in writing.
2. Data in product information and price lists are binding only to the extent that they are expressly referred to in the contract.
Technical Documents and Technical Information
3. All drawings and other technical documents regarding the goods or their manufacture submitted by one party to the other, prior or subsequent to the formation of the contract, shall remain the property of the submitting party.
Drawing technical documentation or technical information received by one party shall not, without the consent of the other party be copied, reproduced, transmitted or otherwise communicated to a third party.
4. The Seller shall, no later than by delivery of the goods, free of charge provide the Buyer with one copy, or the larger number of copies that may have been agreed, of drawings and other technical documents, which are sufficiently detailed to permit the Buyer to carry out operation and maintenance (including repairs) of all the parts of the goods. The Seller shall not, however, be obliged to supply manufacturing drawings of the goods or spare parts.
5.Where a delivery test has been agreed, it shall, unless otherwise agreed, be carried out where the goods are manufactured. If technical requirements for the test have not been agreed, the test shall be carried out in accordance with general practice in the industry concerned in the country where the goods are manufactured.
6. The Seller shall notify the Buyer in writing of the delivery test in sufficient time to permit the Buyer to be present at the test. If the Buyer has received such notice, the test may be carried out even if the Buyer is not represented at the test. The Seller shall record the test. The test report shall be sent to the Buyer. The report shall, unless otherwise shown by the Buyer, be considered to correctly describe the execution of the test and its results.
7. If at the delivery test the goods are found not to be in accordance with the contract, the Seller shall as soon as possible ensure that the goods comply with the contract. If so required by the Buyer a new test shall thereafter be carried out. The Buyer may not, however, require a new test if the defect was insignificant.
8. If no other division of the costs has been agreed, the Seller shall bear all the costs for the delivery tests carried out where the goods are manufactured. The Buyer shall, however, at such delivery tests bear all costs for his representatives, including costs for travel and subsistence.
9. The Seller shall give notice to the Buyer when the goods are ready for delivery. Where a trade term has been agreed, it shall be interpreted in accordance with the INCOTERMS in force at the formation of the contract. If no trade term is specifically agreed, the delivery shall be Ex Works.
Time for Delivery. Delay
10. If, instead of a fixed date for delivery, the parties have agreed on a period of time within which delivery shall take place, such period shall start to run at the formation of the contract.
11. If the Seller finds that he will not be able to deliver the goods at the agreed time or if delay on his part seems likely, he shall without undue delay notify the Buyer thereof in writing, stating the reason for the delay and if possible the time when the delivery can be expected. If the Seller fails to give such notice, he shall, regardless of provisions of clause 13, reimburse the Buyer for any reasonable additional expenses, which the latter incurs and which he would have avoided, had he received the notice in time.
12. If delay in delivery is caused by circumstances which under clause 35, constitutes ground for relief or by an act or omission on the part of the Buyer, including suspension by the Seller under clause 17, the time for delivery shall be extended by a period, which is reasonable having regard to the circumstances in the case. The time for delivery shall be extended even if the reason for the delay occurs after the original agreed time for delivery.
13. If the Seller fails to deliver the goods on time, and the goods are still not delivered within a period of fifteen (15) weeks following the agreed date for delivery, the Buyer may in writing demand delivery within a final reasonable period which shall not be less than one week. If the Seller fails to deliver within such final period and this is not due to any circumstances for which the Buyer is responsible, the Buyer may, by written notice to the Seller, terminate the contract in respect of that part of the goods which cannot be taken in use due to the delay. The Buyer shall also have the right to terminate the contract by written notice to the Seller if it is clear that there will be a delay, under which this clause 13 would entitle the Buyer to terminate the contract. Except for termination of the contract under this clause 13, all other claims (including claims for compensation) in respect of the Seller’s delay shall be excluded. This limitation of the Seller’s liability shall not apply, however, where the Seller has been guilty of gross negligence.
14. If the Buyer finds that he will be unable to accept delivery of the goods on the agreed date, or if delay on his part seems likely, he shall without undue delay notify the Seller thereof in writing stating the reason for the delay and, if possible, the time when he will be able to accept delivery.
If the Buyer fails to accept delivery on the agreed date, he shall nevertheless make any payment which is dependent on delivery as if the goods were delivered. The Seller shall arrange storage of the goods at the Buyer’s risk and expense.
15. Unless the Buyer’s failure to accept delivery as referred to in clause 14 is due to any such circumstances as described in clause 35, the Seller may by written notice require the Buyer to accept delivery within a reasonable period, which shall not exceed eight (8) weeks. If, for any reason for which the Seller is not responsible, the Buyer fails to accept delivery within such period, the Seller may, by written notice to the Buyer, terminate the contract in respect of that part of the goods which is ready for delivery but has not been delivered due to the Buyer’s default. The Seller shall than be entitled to compensation for the loss he has suffered by reason of Buyer’s default. The compensation for the loss he has suffered shall not exceed that part of the price which is properly attributable to the part of the goods in respect of which the contract is terminated.
16. Unless otherwise agreed in the contract, the agreed purchase price, together with value added tax, if any, shall be invoiced with thirty (30%) per cent at point of order (upon written confirmation or order acceptance) and with seventy (70%) per cent in connection with that the Seller notifies the Buyer that the goods is ready for delivery. The invoices become due within five (5) days from date of invoice however, with regard to the final invoice, not before the agreed delivery date. Payment shall be made by Buyer by bank transfer to Seller’s account as instructed by Seller. A valid order shall not be deemed to exist until the Seller has received full payment for the initial thirty (30%) percent of the agreed purchase price. Seller will not deliver the goods until the Seller has received full payment for the agreed purchase price.
17. If the Buyer fails to pay, the Seller shall be entitled to interest from the due date at the rate of interest determined by the laws on late payments in the Seller’s country.
If the Buyer fails to pay by the due date, the Seller shall also, after having notified the Buyer in writing thereof, suspend performance of his contractual obligations until payment is made. If the Buyer has failed to pay the amount due within thirty (30) days after the due date including, but not limited to, opening a letter of credit or providing a bank guarantee, as the case may be, the Seller may terminate the contract by written notice to the Buyer and, in addition to interest on late payment, claim compensation for the loss he has suffered. The compensation shall not exceed the agreed purchase price.
Retention of Title
19. The goods shall remain the property of the Seller until paid for in full, to the extent that such retention of title is valid.
Liability for Defects
20. The Seller shall, in accordance with the provisions of Clauses 22-32 below, remedy any defect in the goods resulting from faulty design, materials or workmanship.
21. The Seller’s liability does not cover defects caused by circumstances, which arise after the risk has passed to the Buyer. The liability does not, for example, cover defects caused by or with regard to attachments, accessory items or parts not provided by the Seller or used without the Seller’s written consent, defects caused by Buyer’s delay in making the goods available for repair after being notified by the Seller of a potential problem with the goods or defects due to conditions of operation deviating from those anticipated in the contract or to improper use of the goods including negligence. Nor does it cover defects due to faulty maintenance (including use of proper fuel, oil lubricants and coolants) or incorrect installation from the Buyer’s side, alterations undertaken without the Seller’s written consent or faulty repairs by the Buyer. Finally the liability does not cover normal wear and tear or deterioration.
22. The Seller’s liability is limited to defects which appear within a period of one year from the date of delivery of the goods. If the goods are used more intensely than agreed, this period shall be reduced proportionately.
23. For parts, which have been repaired or replaced under clause 20, the Seller shall have the same liability for defects as for the original goods for a period of one year. For other parts of the goods the liability period referred to in clause 22 shall be extended only by the period during which the goods could not be used due to a defect for which the Seller is liable.
24. The Buyer shall notify the Seller in writing of a defect without undue delay after the defect has appeared and in no case later than two weeks after the expiry of the liability period defined in clause 22 supplemented by clause 23. The notice shall contain a description of how the defect has manifested itself. If the Buyer fails to notify the Seller in writing within the above time limits, he loses his right to make any claim in respect of the defect. If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Buyer loses the right to make any claim based on damage which occurs and which could have been avoided if such notice had been given.
25. After receipt of a written notice under clause 24, the Seller shall remedy the defect without undue delay. Within this limit the time for remedial work shall be chosen in order not to interfere unnecessarily with the Buyer’s activities. The Seller shall bear the costs as specified in clauses 20-31. Remedial work shall be carried out at the Buyer’s premises unless the Seller finds it appropriate to have the defective part or goods sent to him for repair or replacement at his own premises.
26. If the Buyer gives such notice as referred to in clause 24, and no defect is found for which the Seller is liable, the Seller shall be entitled to compensation for the work and costs which he has incurred as a result of the notice.
27. If the remedy of the defect requires intervention other equipment than the goods, the Buyer shall be responsible for any work or costs caused thereby.
28. All transports in connection with repairs or replacements shall be at the Seller’s risk and expense. The Buyer shall follow the Seller’s instructions regarding how the transport shall be carried out.
29. The Buyer shall bear the increase in costs for remedying a defect which the Seller’s incurs when the goods are located elsewhere than the destination stated in the contract or – if no destination has been stated – the place of delivery.
30. Defective parts, which have been replaced under clause 20, shall be placed at the Seller’s disposal and shall become his property.
31. If the Seller fails to fulfil his obligations under clause 25 within a reasonable time, the Buyer may by written notice require him to do so in a final time, if the Seller fails to fulfil his obligations within that time limit, the Buyer may at his option:
a) have the necessary remedial work carried out and/or have new parts produced at the Seller’s risk and expense, provided that the Buyer proceeds in a reasonable manner, or
b) demand a reduction of the agreed purchase price not exceeding 15 per cent thereof.
If the defect is substantial, the Buyer may instead terminate the contract by written notice to the Seller. The Buyer shall also be entitled to such termination where the defect remains substantial after measures referred to in a). In case of termination, the Buyer shall be entitled to compensation for the loss he has suffered. The compensation shall not, however, exceed 15 per cent of the agreed purchase price.
32. Regardless of the provisions of clauses 20-31, the Seller shall have no liability for defects in any part of the goods for more than two years from the start of the liability period referred to in clause 22.
33. The Seller shall have no liability for defects, including breach of any warranties under or in connection with the contract, save as stipulated in clauses 20-32. This applies to any loss of production, loss of profit and any other consequential economic loss. This limitation of the Seller’s liability shall not apply, however, if he has been guilty of gross negligence.
Liability for Damage to Property Caused by the Goods
34. The Buyer shall indemnify and hold the Seller harmless to the extent that the Seller incurs liability towards any third party in respect of loss or damage for which the Seller is not liable towards the Buyer according to the second and third paragraphs of this clause. The Seller shall have no liability for damage caused by the goods:
a) to any (movable or immovable) property, or consequential loss due to such damage, occurring while the goods are in the Buyer’s possession, or
b) to products manufactured by the Buyer or to products of which the Buyer’s products form a part.
The above limitations of the Seller’s liability shall not apply if he has been guilty of gross negligence. If a third party lodges a claim for compensation against the Seller or Buyer for loss or damage referred in this clause, the other party to the contract shall forthwith be notified thereof in writing. The Seller and the Buyer shall be mutually
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 goods. The liability as between the Seller and the Buyer shall, however, always be settled by arbitration in accordance with clause 38.
Grounds for Relief (Force Majeure)
35. No failure or omission by either party to carry out or observe any term of the contract (except in relation to obligations to make payments under the contract) shall give rise to any claim against the party in question or be deemed in breach of the contract if such failure or omission arises from any cause reasonably beyond the control of the affected party or from: blockades, strikes, lockouts or labor disputes, or from fire, explosion, war, mobilization or military call up of a comparable scope, requisition, seizure, trade and currency restrictions, insurrection and civil commotion, shortage of transport, general shortage of materials, restrictions in the supply of power, damage or mechanical failure in or about Seller’s or Seller’s supplier’s manufacturing plant and defects or delays in deliveries by sub-contractors caused by such circumstances as referred to in this clause. In no such event shall Seller be required to make good shortages in deliveries by purchase from other suppliers or otherwise. The above describes circumstance shall constitute grounds for relief only if their effect on the performance of the contract could not be foreseen at the time of formation of the contract.
36. The party wishing to claim relief under clause 35 shall without delay notify the other party in writing on the intervention and on the cessation of such circumstances. If grounds for relief prevent the Buyer from fulfilling his obligations, he shall reimburse the expenses incurred by the Seller in securing and protecting the goods.
37. Notwithstanding other provisions of these Conditions, either party shall be entitled to terminate the contract by notice in writing to the other party, if performance of the contract is delayed more than six months by reason of any grounds for relief as described in clause 35.
Disputes. Applicable Law
38. Disputes arising out of in connection with the contract shall not be brought before the court, but shall be finally settled by arbitration in accordance with the laws on arbitration applicable in the Seller’s country.
39. All disputes arising out of the contract shall be judged according to the law of the Seller’s country.
40. Notwithstanding anything to the contrary expressed or implied elsewhere in the contract, Seller may at his sole and exclusive discretion terminate the contract forthwith, cancel or until further notice suspend deliveries under the contract, by giving the Buyer notice in writing in event that:
a) the Buyer should be declared bankrupt, enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganization proceedings or should enter into receivership,
b) the Buyer, in the reasonable judgment of Seller, may be unable to pay in full on the due date, or
c) the Buyer fails to provide security for the Buyer’s performance of its obligations under the contract satisfactory to Seller upon Seller’s request.