General terms and conditions for the supply of products and services
I PREAMBLE
1. These General Terms and Conditions for the Supply of Products and Services (the “Terms”) shall apply to all sales and deliveries of products or services (“Products”) by VIKING LIFE-SAVING EQUIPMENT A/S or its Affiliates (”VIKING”) to any customer (the “Purchaser”) (VIKING and the Purchaser collectively referred to as the "Parties" and individually a "Party").
2. These Terms shall apply together with any sales contract entered into between the Parties (collectively the “Contract”).
In case of any discrepancy or inconsistency between any written sales contract entered into between the Parties and these Terms, the written sales contract shall prevail.
II PRODUCT INFORMATION
3. Only information and data included in the Contract are binding upon VIKING. Any information and data contained in product brochures, price lists or any other documents are binding only to the extent that such documents are expressly incorporated into the Contract by reference.
4. Any non-public information, intellectual property rights and knowhow pertaining to the Products, including but not limited to drawings, descriptions, manuals and all other technical documents, is and shall remain the exclusive property of VIKING. Any such information shall not be copied or disclosed to a third party by the Purchaser, or used for purposes other than the purposes intended by VIKING when the information was made available.
III DELIVERY
5. Any trade term set forth in the Contract shall be construed in accordance with INCOTERMS 2010. Unless otherwise agreed in writing, all deliveries by VIKING shall be Ex Works (INCOTERMS 2010) at VIKING’s place of business. Delivery by instalments and early delivery by VIKING shall be permitted, unless otherwise agreed in writing in the Contract.
IV RULES AND REQUIREMENTS
6. Any rules and/or requirements applicable in respect of the Products shall be expressly referred to in the Contract in order to be binding between the Parties
The Purchaser bears the risk of any amendments to such rules and/or requirements after the execution of the Contract. In the event that such rules and/or requirements are amended after the execution of the Contract, VIKING may make reasonable efforts, if so requested by the Purchaser, to change the Products accordingly, subject to an adequate adjustment of the price. Notwithstanding this, VIKING shall in no event be obliged to make such change.
V TIME FOR DELIVERY, DELAY
7. Delivery shall be made no later than on the date set forth in the Contract. If no delivery date has been agreed, delivery shall be made on a date deemed reasonable by VIKING.
8. If delivery by VIKING is or will be delayed, VIKING shall be granted an additional period of time for delivery, such period not to be less than one month. If VIKING fails to effect delivery within such additional period of time, the Purchaser is entitled to terminate the Contract in and claim damages for loss incurred up to an amount not exceeding ten per cent (10 %) of the purchase price.
9. The remedy provided for in clause 8 above shall be the sole and exclusive remedy available to the purchaser in case of delay on the part of VIKING. Any other remedy against VIKING arising out of any delay is excluded.
VI PRICES AND PAYMENT
10. All prices are exclusive of VAT and any other taxes or duties. Unless otherwise agreed in writing, the purchase price shall be paid 30 calendar days after the invoice date.
11. Irrespective of the means of payment, payment shall not be deemed to have been effected until the full outstanding amount has been irrevocably credited to VIKING's account. All banking charges and fees charged by the Purchasers bank shall be paid by the Purchaser.
12. VIKING shall be entitled to interest on any late payment from the day on which payment was due. The rate of interest shall be one and a half per cent (1.5 %) per month or fraction of a month.
In the event of late payment by the Purchaser, VIKING may at its discretion suspend performance of any of its obligations under any Contract with the Purchaser until payment in full has been effected, or terminate the Contract and claim damages.
13. Where goods are ordered by an agent on behalf of a principal, whether named or unnamed, the agent irrevocably and unconditionally guarantees as a primary obligor (and not merely as a surety) to VIKING the due performance by the principal of the obligations of the principal.
VII RETENTION OF TITLE AND PLEDGE
14. VIKING shall retain title to all Products delivered by VIKING until payment in full of the purchase price and all other outstanding claims has been received by VIKING, even if such claims arise out of previous transactions. Claiming retention of title shall not be considered a termination of the Contract and shall not release the Purchaser from its obligations, including but not limited to its obligation to effect payment in full.
15. The Purchaser grants to VIKING a first ranking pledge and a lien in all 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 such products. If VIKING’s outstanding claims are not settled in due time, the title to the relevant products shall pass to VIKING who shall be entitled to deduct the value of the products from its outstanding claims against the Purchaser.
VIII LIABILITY FOR NON-CONFORMITY
16. Subject to Clauses 17 to 24 below, VIKING warrants that the Products comply with the specification and description set forth in the Contract. The Products shall only be considered non-conforming in the event of non-compliance with this warranty.
17. Except for the warranty set out in clause 16, VIKING does not make any further warranties or representations, and VIKING expressly excludes all implied warranties relating to the products, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose and, any warranties and representations that the products will comply with any law or regulations not expressly referred to in the contract.
18. The Purchaser shall examine the Products or cause them to be examined immediately after they have arrived at their final destination. If any non-conformity is discovered or ought to be discovered during this examination, VIKING shall be notified thereof no later than one (1) week after the Products arrived at their final destination. If the Purchaser fails to give such notice, the Purchaser's right to rely on any remedy will be lost.
19. The Purchaser shall further notify VIKING of any nonconformity immediately after the Purchaser has discovered or ought to have discovered the non-conformity.
20. Any notice under Clauses 18 and 19 above shall be in writing, specifying the nature of the non-conformity in detail.
21. The Purchaser looses the right to rely on any nonconformity and consequently the right to resort to any remedy for breach of contract, if the Purchaser has not given VIKING notice thereof within a period of twelve (12) months after the date of delivery.
22. In the event of any non-conformity, VIKING may at its discretion choose either to deliver a substitute Product or to repair any non conforming Product at a place designated by VIKING. The Purchaser shall bear the cost of transportation of the Product to the place designated by VIKING.
VIKING shall always be granted an additional period of time to deliver a substitute Product or repair the Product, such period not to be less than one month.
If VIKING fails to deliver a substitute Product or repair the Product within the additional period of time, the Purchaser shall be entitled to either:
a) a proportionate price reduction not exceeding ten per cent (10 %) of the purchase price; or
b) terminate the Contract, provided that the non-conformity constitutes a fundamental breach by VIKING, and claim damages for the loss incurred by the Purchaser, always provided that such damages shall not exceed ten per cent (10 %) of the purchase price.
23. Any non-conforming Product or parts thereof which have been replaced by VIKING shall be made available to VIKING and be VIKING's sole property.
24. VIKING is not liable for any non-conformity arising out of any of the causes set forth in clause 28, items (i) through (vii).
25. The remedies provided for in clauses 17 to 24 shall be the sole and exclusive remedies available to the purchaser arising out of any non-conformity. Any other remedy against VIKING arising out of such non-conformity is excluded.
IX PRODUCT LIABILITY
26. 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.
27. 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, except for liability of VIKING prescribed by mandatory rules of the applicable national law. 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.
28. If VIKING incurs liability towards any third party for any damage as described in Clause 27 above, the Purchaser shall indemnify and hold VIKING harmless from and against such liability. In addition, the Purchaser shall indemnify and hold harmless VIKING from and against any damage arising out of (i) any improper or incorrect use of the Product, (ii) any improper or incorrect installation, repair or maintenance of the Products, (iii) any alteration carried out without VIKING’s prior written consent, (iv) any failure by the Purchaser to adequately train personnel in the operation of the Products, (v) any normal wear and tear or deterioration, (vi) any failure by the Purchaser to comply with applicable laws or regulations, or (vii) any negligence on the part of the Purchaser.
29. If a claim for such damage and/or injury as described in Clauses 27 and 28 above is filed by a third party against one of the Parties, the Party against whom the claim is filed shall immediately inform the other Party thereof in writing.
The Purchaser shall be obliged to be joined as a party to proceedings of any court or arbitral tribunal examining claims for damages filed against one of the Parties on the basis of damage allegedly caused by the Product.
X FORCE MAJEURE
30. VIKING 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, terrorism, restrictions in the use of power, any industrial dispute, any disturbances in deliveries by subcontractors, any shortage of raw materials, utilities or transportation and any other circumstances that are beyond VIKING’s reasonable control and which affect VIKING’s possibilities to fulfil the Contract ("Force Majeure").
XII LIMITATION OF LIABILITY
31. Notwithstanding any provision of these terms which might otherwise be to the contrary, VIKING shall not be liable to the purchaser for indirect, exemplary, punitive or consequential damages (including but not limited to loss of profits, goodwill, anticipated savings, customers or revenue) of any kind, whether based upon a claim or action of contract, warranty, negligence, strict liability or other tort, a product liability claim, or otherwise arising out of or related to the contract, and even if VIKING was advised in advance of the possibility of such damages. In addition, the maximum liability of VIKING arising out of the contract shall be limited to the total amount paid by the purchaser to VIKING for the products giving rise to the claim under the contract.
XIII APPLICABLE LAW AND DISPUTES
32. If any provision of the Contract, including these Terms, contravenes mandatory law or is illegal, invalid or unenforceable, such contravention, illegality, invalidity or unenforceability shall not invalidate the entire Contract, including these Terms.
33. The Contract, including these Terms, shall be governed by the laws of the country, where the contracting VIKING entity is situated, and without regard to any choice of law rules (no renvoi).
34. Any dispute or claim arising out of or in connection with the Contract, including these Terms, shall be settled in accordance with the Rules of Procedure of the Institute of Arbitration in the country, where the contracting VIKING entity is situated by one sole arbitrator appointed by the Institute in accordance with the said rules. However, either Party may seek interim relief for any dispute.
The decision of the arbitrator shall be final and binding upon the Parties. The place of arbitration shall be VIKING’s place of business. The language of the arbitration shall be the English language.
35. Notwithstanding the foregoing, VIKING shall, at its option, also be entitled to bring an action against the Purchaser before any court of competent jurisdiction under national or international law, in which event the arbitration clause set out above shall not apply.
XIIII SANCTIONS
36. The Purchaser hereby agrees and acknowledges that it shall at all times comply with all applicable international, national, and regional sanctions laws and regulations, including but not limited to US and EU legislation governing sanctions and export controls ("Sanctions Laws").
37. The Purchaser shall not directly or indirectly engage in any activity or transaction that is prohibited under Sanctions Laws, including but not limited to: a) Engaging in business dealings with individuals, entities, or countries subject to sanctions. b) Providing financial or material support to any individual or entity designated as sanctioned. c) Participating in any trade or commercial activities in violation of Sanctions Laws. d) Facilitating or assisting others in any activity that would breach Sanctions Laws.
38. The Purchaser shall indemnify and hold harmless VIKING and its affiliates, officers, directors, employees, and agents from any and all claims, damages, losses, liabilities, costs, and expenses arising out of or related to any violation or alleged violation of Sanctions Laws by the Purchaser.
39. In the event of a material breach of this Clause by the Purchaser, VIKING shall have the right to terminate the Contract or suspend the relationship with immediate effect without any liability what so ever on the part of VIKING. Such termination or suspension shall be without prejudice to any other rights or remedies available under law or the Contract.