DANTECH FREEZING SYSTEMS STANDARD TERMS & CONDITIONS
The General Conditions which at Dantech Freezing Systems A/S or Dantech Freezing Systems Pte. Ltd. (in the following referred to as (DFS) discretion may be subject to extended contractual negotiations between the parties in the case of sale of industrial projects shall apply between the parties’ general conditions, the General Conditions given below shall apply.
1 Price, Quotation
1.1 All orders are received subject to DFS acceptance in writing according to the original quotation. An order is accepted at the price valid at the time of DFS’s acceptance of the order. In case of changes in costs, rates of currencies, taxes, or the like prior to acceptance, DFS reserves the rights to change the price, or in case Purchaser cannot accept the changed price to cancel the order without liability.
2 Product Information, Drawings, and Descriptions
2.1 All information and data contained in product brochures and price lists are binding only to the extent that they are by reference expressly included in DFS’s acceptance of an order.
2.2 All drawings and technical documents relating to the machinery or its manufacture submitted by one party to the other prior or subsequent to the acceptance of the quotation shall remain the property of the submitting party, and shall only be used within the specific scope of the contract and not communicated to third parties.
2.3 DFS shall if so requested in writing by Purchaser furnish free of charge to Purchaser information and drawings which are sufficiently detailed to permit operation and maintenance of all parts of the machinery. DFS shall, however, not be obliged to supply manufacturing drawings for the machinery or spare parts.
3.1 DFS reserves the right to substitute any part whatsoever of the specified equipment for other parts provided that such parts are of the same quality as those specified for the original equipment provided, however, that DFS informs Purchaser of such substitution in writing. Quoted dimensions are approximate and can be changed by DFS if DFS finds such changes appropriate for the intended use of the machinery.
4.1 The agreed prices include costs or packing materials and other necessary Protection unless otherwise agreed.
5 Delivery – Passing of Risk
5.1 Any agreed trade term shall be interpreted in accordance with Incoterms 2010. If no trade terms are specifically agreed delivery shall be Ex Works. The risk for accidental damage to the machinery will pass to Purchaser upon delivery.
5.2 If Purchaser fails to accept delivery he shall be charged with the expenses incurred for storage, commencing one month after notification that the machinery is ready for delivery. If the machinery is stored at ’s premises, at least 0.5 (point five) per cent of the invoice amount shall be charged for each month. Furthermore, DFS is entitled to claim compensation for further damages due to Purchaser’s lack of acceptance of delivery, unless caused by reasons stipulated in Clause 11. Storage constitutes for all purposes of the contract delivery.
6.1 The total order value to be covered by an unconditional Irrevocable Confirmed Letter of Credit opened through and confirmed by preferably Sparekassen Vendsyssel, Østergade 15, 9760 Vrå, Denmark at the account of Purchaser not later than 14 (fourteen) days after the date of DFS’s acceptance of the order, payable against presentation of shipping documents or sight drafts. The Letter of Credit shall permit transhipment, partial shipment, and shipment from any European and Singapore port. All expenses incurred by opening and handling any Letters of Credit shall be paid by Purchaser.
Unless otherwise agreed by the parties in writing payment shall be made as follows:
40% as down payment, against presentation of Invoice within 8 (eight) days after the date of DFS’s acceptance of the order.
50% at time of shipment, against presentation of Invoice and presentation of shipping documents or Warehouse Receipt.
10% payable after completed installation or 90 days from date of shipment whichever is the earlier.
6.2 The machinery shall remain the property of DFS until payment has been made in full. Bills of Exchange or instruments of debt or any of the like shall not be considered as payment until fully paid.
6.3 If Purchaser does not pay within the time stipulated DFS is entitled to charge interest on overdue payments at the rate of 2 (two) per cent per month.
7 Tests of the Machinery during Manufacture
7.1 If the contract provides for the machinery to be tested during manufacture, such tests shall, unless otherwise agreed in writing, be carried out at the place of manufacture during normal working hours.
7.2 DFS shall notify Purchaser of the tests mentioned in Clause 7.1 in sufficient time to permit Purchaser to be represented at the tests. If, in spite of such notice, Purchaser is not represented at the tests, a copy of the test report shall be communicated to Purchaser who shall not be entitled to contest the correctness of such report.
7.3 If, during any test referred to in Clause 7.1, the machinery is found to be defective, DFS shall without delay make good the defect or ensure that the machinery complies with the contract.
7.4 As soon as DFS has taken the measures required in clause 7.3, Purchaser shall be notified thereof in writing. Purchaser shall be entitled to require a new test unless the defect reasonably can be deemed insignificant.
7.5 Unless otherwise agreed in writing, DFS shall bear all expenses for tests carried out at the place of manufacture of the machinery. However, Purchaser shall bear all travelling and living expenses for his representatives.
8 DFS’s Liability for Delay in Delivery or Commissioning
8.1 DFS is not liable for damages due to delay unless it is established that such loss is due to gross negligence on DFS’s part or others for whom DFS is liable. 8.2 Should Purchaser sustain damages owing to a delay for which DFS is responsible, cf. Clause 8.1, Purchaser shall be entitled to the exclusion of all other claims and remedies to claim liquidated damages for such delay. Liquidated damages shall amount to 0.5 (point five) per cent for each full week of delay, however, providing for a grace period of 3 (three) weeks, but shall not exceed 5 (five) per cent of the net selling price, cf. Clause 9.9 of that part of the total delivery, which, as a result of the delay, cannot be used in time or in accordance with the contract. DFS is in no event liable for any consequential damages, e.g. loss of profit or loss suffered by third parties.
9.1 DFS shall be liable for defects and/or deficiencies including the failure of the machinery to fulfil express contractual requirements, as follows:
9.2 If, within 12 (twelve) months after the machinery is put into operation, the use of any component is rendered impossible or significantly impaired owing to circumstances existing prior to the passing of risk – in particular defective design, unsatisfactory material or poor workmanship – DFS shall at its option either repair or replace such component free of charge provided, however, that the defective part or the machinery is returned to DFS for Purchaser’s account and risk for repair or replacement at DFS’s premises within 30 (thirty) days after Purchaser’s notification of defect to be given in writing
immediately upon discovery. Transport of the repaired or replaced part or the machinery from DFS to Purchaser is for Purchaser’s account and risk. In the event that DFS accepts repair or replacement at Purchaser’s premises, Purchaser shall indemnify any costs, specified by DFS, incurred by DFS, but not limited to, transport to and from Purchaser’s and DFS’s premises. Replaced components shall become the property of DFS. In the event that a defect is not found by DFS for which DFS should not be held liable, DFS shall be entitled to compensation for the work and costs which DFS has incurred. If commissioning is delayed through no fault of DFS, the liability shall expire 18 (eighteen) months after the passing of risk at the latest. For any major products not manufactured by DFS the liability of DFS shall be restricted to the assignment of liability claims which are due to him vis-à-vis the supplier of such products.
9.3 The right of Purchaser to make claims deriving from defects and/or deficiencies shall terminate in all cases 6 (six) months after notification of the defects and/or deficiencies, and at the latest when the guarantee expires.
9.4 No warranty shall be undertaken for damage which is attributable to the following: Unsuitable or improper use, faulty assembly or commissioning by Purchaser or third parties, normal wear and tear, faulty or negligent handling, unsuitable utilities and replacement materials, alterations or repair work carried out by Purchaser, poor building work, unsuitable building soil, chemical, electrochemical, or electrical influences, provided that they are not attributable to the fault of DFS.
9.5 Purchaser shall grant DFS the time and opportunity, after consultation with DFS, to carry out all repairs and supply all replacements, at DFS’s discretion, otherwise DFS shall be released from all liability for the defects and/or deficiencies.
9.6 The guarantee period for the replacement part and repairs shall be 3 (three) months, running at least to the expiry date of the original guarantee on the goods supplied. The period of liability for defects and/or deficiencies in the machinery supplied shall be extended by the duration of the shutdown
caused by the repair work.
9.7 If the equipment is manufactured according to drawings of Purchaser, DFS shall only be liable for manufacture in accordance with the drawings and not for the specified material quality.
9.8 Purchaser waives all rights to be indemnified for any consequential damagers, e.g. loss of profit, loss suffered by third parties, and claim for damages which is not incurred on the machinery itself, unless it is established that such loss is due to gross negligence on DFS’s part or others for whom DFS is liable.
9.9 If DFS is liable according to Clause 9.8 compensation for defects is limited to 5 (five) per cent of the net selling price for the delivery, i.e. the amount invoiced by DFS, less all charges for freight, insurance, packing, installation, commissioning, after sales service, and any and all taxes and duties imposed on the sale of the contractual products, e.g. VAT and custom duties.
10 Product Liability
10.1 DFS is not liable for damage to real property or movables unless it is established that such damage to real property or movables is due to gross negligence on DFS’s part or others for whom DFS is liable.
10.2 DFS is under no circumstances liable for personal injury or damages as DFS is under no circumstances liable for consequential loss, loss of profits, or any other kind of indirect loss, mentioned in Clause 10.1 above if such personal injury or damages are due to use of the delivered products contrary to DFS’s manuals or technical specifications or are due to negligent acts on the part of others than DFS i.e. sub suppliers or independent transporters.
10.3 DFS is under no circumstances liable for consequential loss, loss of profits, or any other kind of indirect loss.
10.4 DFS shall not be liable for damage to property occurring while the machinery is in the possession of Purchaser. Nor shall DFS be liable for damage to units manufactured by Purchaser or to machinery of which Purchaser’s units’ form a part.
10.5 In the event that DFS is held liable according to the rules concerning “Product Liability” in relation to a third party, Purchaser is obliged to indemnify DFS from all claims to the extent that DFS has limited his liability according to Clauses 10.1 through 10.3.
10.6 If a third party should claim damages from one of the contracting parties’ in respect to delivery made under these General Conditions, this party is obliged to inform the other party with the utmost dispatch.
11 Force Majeure
11.1 Any delay in or failure of performance of either party shall be considered as cases of relief of responsibility to the extent that such delay in or failure of performance is caused by occurrences after the acceptance of the quotation that are beyond the control of the party affected including, but not limited to: Industrial disputes, fire, war, general mobilization of unforeseen military mobilizations, requisition, general shortage of materials, shortage of transport, civil commotion, import bans or export bans, restrictions in the use of power and defects, or delays in deliveries by sub suppliers.
B. SUPPLEMENTARY CONDITIONS FOR INSTALLATION WORKS
12 Scope of the Works, Laws, and Regulations
12.1 The scope of delivery and installation works (in the following referred to as the Works) shall be as set out in the contract and as described in detail in the specifications and descriptions forming a part of the final order.
12.2 Any variations resulting from amendments to mandatory laws, regulations or provisions applicable to the Works occurring in the period between the date of the quotation and the date of commissioning will be for the account of Purchaser. The provisions stipulated in Clauses 15.3 through 15.4 shall apply to such variations.
13 Preparatory Work
13.1 Within the time agreed by the parties in writing DFS shall submit to Purchaser drawings or descriptions indicating how the machinery is to be installed. At the same time DFS shall provide all information required by Purchaser’s preparation of proper foundations and other beddings.
Purchaser shall provide suitable access to the site and necessary equipment and shall prepare all necessary connections of electricity, water, steam, etc. to the machinery.
13.2 Purchaser shall perform the necessary preparatory work in accordance with the information referred to in clause 13.1. All such work shall be completed within the time agreed by the parties in writing so that foundations and beddings are ready to receive the Works at the proper time. Purchaser shall in writing notify DFS of the completion of the preparatory work at least two weeks before installation is due to commence.
13.3 Before installation is due to commence, Purchaser shall for his own account provide that water and power facilities including compressed air and electricity, are available to DFS on the site in necessary quantities or as specified in the contract. Purchaser shall also provide DFS free of charge with lockable or otherwise secured premises or storage areas on or near the site as a protection against theft and deterioration of the Works and of DFS’s tools and equipment.
13.4 DFS shall notify the Purchaser in writing when the Works are ready for installation. Such notification shall be in sufficient time to enable Purchaser to fulfil his obligations in relation to prepare works.
14 Work outside the Contract
14.1 All civil works or ship construction works are considered to be outside DFS’s scope of supply including, but not limited to: Work such as cutting, drilling, or welding in or onto ship’s hulls, girders, and bulkheads, support and/or stiffening’s, deck-reinforcement, or making good cut-outs in ship constructions or similar, insulating and wood work, delivery and fitting of pipes for salt water, fresh water, and steam, as well as waste pipes from drip trays or fresh air pipes for holds, the mounting of nameplates as well as the installation of pipes and cables for gauges and control or regulation circuits, propelling pipes or similar.
15.1 Until the works have been commissioned and subject to the limitations in Clause 15.4, the parties are entitled to require variations to the scope, design, and construction of the Works agreed upon.
15.2 Requests for variations shall be submitted to the other party in writing and shall contain an exact description of the variation required.
15.3 As soon as possible after receipt of a request for a variation or after having, itself made a proposal for a variation, DFS shall notify Purchaser in writing whether and how the variation can be carried out stating the resulting alteration to the contract price, the time for completion, warranty, and other terms of the contract. DFS shall also give such notice to Purchaser when variations are required by reason of changes in laws and regulations as mentioned in Clause 12.2.
15.4 DFS shall not be obliged to carry out variations required by Purchaser before the parties have agreed how the variations will affect the contract price, the time for completion and other terms of contract.
16. Supervision of Installation
16.1 The parties shall each in writing appoint a representative to act on their behalf during the day-to-day work on the site. Notice in writing of the appointment shall be given to the other party not later than upon DFS’s notification in writing that the machinery is ready for dispatch from the place of manufacture. The representatives shall be present on or near the site during working hours. Unless otherwise agreed in writing, they shall be authorized to act on behalf of their respective parties in all matters concerning installation of the Works and fulfilment of the contract. Wherever these General Conditions stipulate that notice in writing shall be given, the representatives shall be authorized to give and receive such notice on behalf of his/her party.
16.2 Purchaser shall make available to DFS free of charge all necessary labour in quantities as required by DFS. DFS shall inform Purchaser of its requirements for unskilled labour at one week’s written notice. DFS shall provide for adequate staff for supervising the installation.
16.3 Purchaser shall make available to DFS free of charge all necessary cranes, lifting tackle, scaffolding and equipment for transport on the site to the
extent that such equipment is necessary for carrying out installation on the site. DFS shall specify in writing its requirements in this respect at the latest one month before the start of installation.
16.4 Purchaser shall notify DFS in writing of the safety regulations which affect the personnel at the site. DFS shall ensure that such regulations are observed by its personnel employed on the site.
17.1 The technical requirements for the commissioning tests shall be as specified in the contract. If they are not specified in the contract, the technical requirements shall be in accordance with the general practice and the standards generally applied by DFS.
17.2 The tests shall be conducted by DFS and shall take place in the presence of representatives of Purchaser. If Purchaser is prevented from being present on the agreed date of the commissioning tests, DFS shall, within a reasonable period of time, notify Purchaser in writing of a new date for such tests. If Purchaser is not present on the postponed date, the tests can be carried out in his absence. In this case, DFS shall be entitled but not obliged to engage, at the expense of Purchaser, and independent expert to be present during the tests.
17.3 A report shall be made of the commissioning tests. If Purchaser is not present during the commissioning tests, cf. Clause 17.2, a copy of the report shall be communicated by DFS to Purchaser who shall not be entitled to contest the correctness of this report.
17.4 If during the commissioning tests, the Works are found not to be in accordance with the contract, DFS shall, without delay and at its own expense, ensure that the Works comply with the contract. New
commissioning tests shall then be carried out in accordance with the provisions in Clauses 17.1 through 17.3 unless otherwise agreed by the parties in writing, or if the deviations from the contractual condition reasonably is deemed not to affect the efficiency of the works.
17.5 Purchaser shall provide free of charge any power, lubricants, water, fuel, raw materials and other materials required for the commissioning tests and for the final adjustments in connection with these tests in accordance with Clauses 17.1 through 17.4. He shall also install free of charge any apparatus and provide free of charge any labour required by DFS for the carrying out of the commissioning tests.
17.6 If Purchaser fails to fulfil his obligations under Clause 17.5 or if the parties fail to agree on a date for commissioning tests, cf. Clause 17.1, thereby preventing the commissioning tests from being carried out, the commissioning tests shall be regarded as having been satisfactorily completed at the expiration of the time-limit stated by DFS in its notification according to Clause 17.1.
Purchaser is not entitled to use the Works or any part of them before commissioning without the written consent of DFS. In breach hereof the works shall be regarded as having been commissioned.
C.18 Delivery for and/or Installation on Vessels
18.1 The General Conditions stipulated in Clauses 1 through 19 shall apply with the following exception and clarification.
18.2 DFS’s liability for defects cf. Clause 9.9 is limited to EURO 100,000. –
18.3 Purchaser waives all rights to be indemnified for lay time and demurrage.
D.19 Disputes and Applicable Law
19.1 Any disputes arising from the contract regarding the interpretation and application of the contract shall be governed by Danish or Singapore Law. The venue for any legal actions instituted by Purchaser against DFS shall be The Danish or Singapore Courts.
Legal actions against Purchaser can be instituted at DFS’s discretion at The Danish or Singapore Court.