Terms and conditions
An order for delivery of work, i.e. products, materials, services, equipment, tools, personnel, etc., from DANHEAT A/S, hereinafter referred to as “D”, presupposes acceptance by the Buyer of these Terms and Conditions, regardless of the form in which the order is given. These Terms and Conditions are valid until otherwise notified to the Buyer by D.
Price lists for service assistance, tools, etc. are subject to special terms and shall be enclosed with and form an integral part of these Terms and Conditions. In case of discrepancy between them, the price lists shall prevail.
These Terms and Conditions are divided into two main sections:
GENERAL CONDITIONS, articles 2-8
TERMS FOR ASSISTANCE BY D’s PERSONNEL, articles 9-15
2.1 The invoice for the work will be forwarded as soon as possible after completion of D’s work and shall be paid by the Buyer according to the terms of payment stated in the contract.
2.2 Work or products delivered by D shall remain the property of D until paid for in full to the extent that the applicable law permits such retention of property.
2.3 If payment is not received on the due date, interest will be charged from that date until payment is effected. Interest shall be added to the invoiced amount on the basis of LIBOR for EUR plus 6% p.a.
2.4 If the Buyer wishes to transfer the order to a third party, such transfer requires D’s prior acceptance. In this situation, the Buyer shall remain liable for payment to D.
3.1 If D&D is delayed in delivery or in the work for reasons caused solely or partly by the Buyer or any of his representatives, employees, officers, subcontractors, or agents, D shall not only be allowed the necessary extra time but also compensation for extra costs that D may incur.
3.2 If D is delayed in delivery or in the work by its own fault, D shall be liable for compensation or liquidated damages only if such written agreement has been stipulated directly in the Contract entered between D and the Buyer. Liability for damaged does not include consequential or indirect damages, irrespective of the nature of such damages. In no event shall the indemnity exceed 7,5% of the contract sum. The Buyer is not entitled to any other remedies and may not cancel the contract due to delays on parts of D.
4.1 All agreements shall be made on the basis of the limited liability provisions set forth herein. Other or more extensive liability, including the right to cancel a contract or claim damages beyond the extent stated herein, shall be valid only if a written agreement stating the nature and extent thereof has been entered before acceptance of delivery of the work and if the price is adjusted to include the costs of appropriate additional insurance or additional exposure.
4.2 D’s liability for defects in materials delivered shall be limited to procuring and supplying replacement materials free of charge.
4.3 For repair work or other work, D’s liability for defects shall be limited to repair of the defect in question. D shall cover only the direct costs of labour and materials for such repair. D&D disclaims any other cost, whether direct, indirect, consequential, or otherwise. Payment for travelling time, waiting time, travelling expenses, hotel, and meals shall be for the account of the Buyer and shall be invoiced accordingly.
4.4 D&D shall be liable for damage only if caused by gross negligence or intent on the part of D’s personnel. D’s liability shall be limited to repair of the direct damage and shall cover neither consequential costs nor indirect loss, irrespective of the nature of such loss. In no event shall D’s aggregate liability arising out of a contract exceed the total value of the contract or the equivalent amount in local currency. In no event can the amount exceed the amount of the contract, the maximum being DKK 10 million. The Buyer agrees to indemnify D with respect to any liability in excess of this amount.
4.5 D shall make its best effort to pass on to the Buyer all manufacturers’ warranties for machinery and equipment procured by D for the work. In no event shall D’s warranties/liability for machinery and equipment procured by D be more extensive than the manufacturer’s warranties.
4.6 Where D has merely supervised the commissioning of the equipment and has not carried out the installation/repair, D shall incur no liability in respect of damage caused by defects in connection with such installation/repair. D shall be liable only for damage directly related to gross negligence or intent on the part of D’s personnel with a view to improper commissioning procedures.
4.7 D assumes no liability for defective materials or workmanship, loss, or damage once the work has been accepted by the representative of the classification society or the Buyer. In no event shall D&D be liable unless the defective materials or workmanship are detected and presented to D in writing within thirty (30) days of the Buyer’s detecting the defects, or the work has ceased for whatever reason, or products have been returned to D, whichever occurs first.
5.1 In case D is hindered by an event of force majeure from carrying out the agreed work within the agreed time, then D shall be allowed the necessary extra time from the point of time when the event of force majeure ceases. D shall not be liable for loss, damage, or delay caused by an event of force majeure.
5.2 Force majeure shall be taken to include, but not be limited to, acts of God, strikes, lockouts, general disturbance, major traffic disturbance in international transportation, inclement weather conditions, and other circumstances beyond D’s control.
6.1 Unless statutory provisions apply, the following shall govern D’s product liability:
6.2 D shall be liable for personal injury only if it is proved that such injury was caused by negligence on the part of D or others for whom D was responsible.
6.3 D shall not be liable for damage to property occurring whilst D’s products are in the Buyer’s possession. Nor shall D be liable for damage to products manufactured by the Buyer or to products or services of which the Buyer’s products form a part.
6.4 In no event shall D be liable for loss of production, loss of profit, or any other consequential damage or indirect loss.
6.5 In no event shall D’s liability exceed DKK 10 million.
6.6 To the extent that D incurs product liability to a third party, the Buyer shall indemnify D as far as D’s liability has been limited by the four preceding paragraphs.
6.7 The above limitations in D’s liability shall not apply where D has been guilty of gross misconduct.
6.8 If a claim for damages as described in this clause is lodged by a third party against D or the Buyer, that party shall forthwith inform the other party thereof in writing.
6.9 D and the Buyer shall be obliged to let themselves be summoned to the court or arbitration tribunal that examines claims for damages lodged against one of them on the basis of damage allegedly caused by D’s work or products.
7.1 D&D disclaims any liability that is not covered by these Terms and Conditions. D specifically disclaims all warranties of merchantability and fitness of D’s work or products for particular purpose.
8.1 All deliveries from D shall be subject to CISG. Any dispute between the parties regarding a situation arising out of or in connection with an agreement governed by these “Terms and Conditions” shall be subject to the law of the country in which the contracting D company is domiciled without giving effect to the principle of conflict of the laws thereof. Any dispute shall be settled by the commercial court of the country in which the contracting D&D company is domiciled.
9.1 A normal week comprises 5 working days and 2 weekend days. A normal working day comprises 8 working hours, and hours exceeding 8 working hours shall be considered as overtime hours.
9.2 All working hours on weekend days and D’s personnel’s national holidays shall be considered as overtime hours.
9.3 D personnel can only undertake working hours exceeding 12 hours per day or work on Sundays against the Buyer’s representative’s written approval. Reasons for overtime hours exceeding 12 hours per day and written approval shall be given on the time sheet.
9.4 The Buyer or his authorised representative is requested to follow the progress of the work closely.
9.5 Time sheets showing the time during which D’s personnel have carried out work for the Buyer shall be filled in daily and shall be countersigned by the chief engineer/work foreman or any other authorised representative of the Buyer.
9.6 If the Buyer’s representative fails to countersign the time sheets, or if the representative does not approve of the time sheets that have been filled in by D’s personnel, the Buyer’s representative or the Buyer himself shall immediately inform the D company responsible for the job by telex, telefax, E-mail, or telegram of the reason for the refusal. If a time sheet has not been countersigned in accordance with this article, or if the Buyer has not given due notice of the unapproved time sheets to the relevant D company, then D shall be entitled to reject any objections regarding invoices based upon time charged to the Buyer.
9.7 The effective working time is defined as the time from the commencement of work by D’s personnel until they leave the job, less the time spent on meal breaks.
9.8 If D’s personnel are not provided accommodations on board a ship where they are carrying out a job, the working time starts at the time D’s personnel leave their hotel and ends at their return to the hotel.
10.1 Waiting time caused by lack of work due to circumstances beyond the control of D’s personnel shall be invoiced at the rate valid for normal working hours. D’s personnel are prepared to undertake other kinds of work than originally intended in order to compensate for waiting time.
10.2 Waiting time shall be charged daily between 8 a.m. and 8 p.m. A maximum of 10 hours of waiting time can be charged per day.
11.1 Travelling, hotel, allowances, and other expenses paid by D, including telephone calls, telefaxes, etc. shall be invoiced to the Buyer at cost plus 15% overhead charges.
11.2 Travelling time shall be invoiced at the rates for normal working hours max 12 hours/day.
11.3 Accommodation shall be of a reasonable standard.
12.1 Accommodation shall be of a reasonable standard. D’s personnel shall have access to shower with hot and cold water.
12.2 D’s personnel shall have purchasing facilities for daily requirements such as food, beverages, etc. D’s personnel shall have access to a regrigerator.
12.3 Payment for beverages etc. Bought on board the ship or at the site should preferably be settled with D’s personnel before they leave.
13.1 It is the sole responsibility of the Buyer to advise and, whenever necessary, to obtain permissions, permits, passes, licences, or certificates from the appropriate authorities or classification societies for work to be carried out by D.
14.1 If required, D shall supply tools and equipment, subject to a separate agreement.
14.2 Rental of tools from an D company shall be charged from the day that the tools leave that company until they are received back at the same company.
14.3 After use, D’s tools shall be packed in D’s tool box(es) under the supervision of the Buyer or his representative. Any shortages, damage, etc. Shall be noted and the tool box(es) locked.
14.4 The buyer shall arrange for transportation of the tool box(es) to their point of origin. The Buyer shall arrange for insurance against loss or damage.
14.5 The tools shall be received by D no later than 90 days after termination of the work. If the tools are not received within this time, they shall be considered lost and shall be charged to the Buyer. Damaged tools shall also be charged to the Buyer.
14.6 Upon request D shall supply industrial gases at the Buyer’s expense. If the Buyer does not specifically request D to supply such gases, the Buyer shall be expected to supply them.
14.7 Provided no other arrangements are made, the following supplies and services are not included in D’s work and shall be made available to D’s personnel:
– Assistance for transport of materials to and from the work site
– Necessary scaffolding
– Overhead cranes, blocks, fall wires and shackles
– General assistance for cleaning etc.
– Supplies of electricity, compressed air for working and personnel protection equipment, water and fuel, and necessary lighting.
15.1 The Buyer shall pay compensation and indemnify D in case of damage to D’s property or injury or deathe of personnel employed by D or any third party when and to the extent that such injury or death is caused by the Buyer’s negligence may be constituted by lack of necessary instructions concerning the work to be carried out by D’s personnel.
15.2 The Buyer is obliged to inform D on any material containing asbestos. D cannot in any way, whatsoever, be held liable for the contents of any such material, including for any fi-nancial consequenses thereof or consequences of satety or as regards time. The Buyer under-takes to indemnify D for all costs, expenses and consequences caused by any such contents of asbestos.
15.3 The Buyer is responsible for removal, disposal of, or the consequences of the presence of dangerous, poisonous or otherwise polluting materials.
15.4 Where the Buyer establishes or is covered by a Builder’s Risk insurance, ship repairer’s legal liability insurance, or other general liability insurance, D and D’s work shall be covered by such insurance and subrogation against D shall be waived.