Terms and conditions
These general terms and conditions (“Terms”) apply to all products (“Products”) and services, including if agreed related installation, (“Services”), offered, designed, engineered, built and/or delivered to any customer (“Customer”) by SubC Partner A/S, company reg. no. 28 70 26 12 (“SubC”). Services to be provided under these Terms only relate to Products supplied by SubC. SubC and the Customer are jointly referred to as the “Parties” and separately a “Party”. SubC does not accept any conflicting, contrary or additional terms and conditions of the Customer unless SubC expressly confirms acceptance thereof in writing.
Placing of orders
All orders submitted by the Customer must as a minimum specify the type, materials and quantity of Products and/or Services requested, delivery place and requested delivery dates. If the Customer submits any design or engineering orders, the order must include all necessary specifications for SubC to design, engineer and build the Product. No order is binding for SubC unless and until confirmed in writing by SubC and expressly referred to in the order confirmation given by SubC. Changes in the order must be agreed in writing
Price and payment
Unless otherwise agreed by the Parties, the payment conditions are 30 days net from invoice date. All prices are exclusive of VAT and excluding freight, packaging, import duties, customs charges, tariffs etc. unless otherwise stated.
In case of delay of the Customer’s payment, SubC may claim interest at the rate of 2 (two) % for every commenced month until payment. SubC may require the Customer to submit financial information prior to agreement on payment terms and the Customer is obliged to comply with any such reasonable requests.
If the Customer’s financial position has deteriorated in SubC’s opinion, SubC may at its sole discretion change the payment terms and credit limit without notice by requiring cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
If the Customer does not fulfil its payment obligations, SubC may suspend any order or any remaining balance thereof until the payment is made. In addition, SubC may terminate any order or any remaining balance thereof by giving the Customer 3 (three) days’ written notice.
SubC may at all times set off any of its debt against any debt of the Customer regardless of whether the debt has become due or not.
Supply of Products
Delivery of Products will take place in accordance with the order confirmation and in accordance with agreed delivery schedule and delivery times. Delivery of the Products will be EXW (Incoterms 2010) unless otherwise agreed in the order confirmation. The production and construction start-up is conditional that SubC has received final and complete set of drawings and documentation form the Customer.
SubC is not liable for any claims, loss, costs or damages suffered by the Customer due to any delay of the Products, and the Customer understands that changes to the order may result in postponement of the delivery date.
SubC holds the title to the Products until full payment is affected by the Customer. If the Customer fails to pay any invoice at the due date, SubC may reclaim the delivered Products in question. The Customer shall at his own expense ensure all Products delivered to their full replacement value until title to the Products has passed to the Customer.
If delay is due to the Customer’s default, the Customer shall reimburse SubC any additional costs incurred by SubC. The Customer is not entitled to cancel any orders for the Products.
SubC may use sub-suppliers without the prior written consent from the Customer.
SubC accepts to perform any changes to the order confirmation, if and provided that such changes can be carried out by SubC’ without interfering in any other commitments. SubC will inform the Customer of any changes in the price and/or delivery schedule due to such change request.
The Customer shall inform SubC of any and all technical norms and standards, laws, regulations and other quality standards and/or requirements which the Products shall comply with.
Acceptance of the Products
The Customer shall upon delivery inspect the purchased Products for visible defects, including controlling measurements such as lengths, weights etc. The Customer has accepted the delivered Products unless written notice of rejection specifying the reasons for rejection is received by SubC within 3 (three) days from delivery of the Products.
Supply of Services
Delivery of Services will take place in accordance with the order confirmation and in accordance with agreed time schedule. Services are deemed delivered upon completion of the work specified in the order confirmation.
In the event of changes to the delivery of the Products which affect the delivery of the Services, SubC shall be entitled to extension of time equal corresponding thereto.
All Services are separate and do not affect the delivery time or transfer of risk for or title to any Products, which are or will be delivered in relation to the Services.
The Customer understands that changes to the order may result in postponement of the delivery date. Upon such change, the Parties will agree on a new delivery date.
If delay is due to the Customer’s default, including the Customer’s failure to perform preparatory work subject to clause 9, the Customer shall reimburse SubC any additional costs incurred by SubC.
For the purpose of this clause 8, it shall not be regarded as a delay of SubC’s performance if the delay is caused by Customer’s failure, any delay or failure to give SubC access to the site where the Services are to be performed, any delay caused due to weather conditions (such as rough or adverse weather which prevents or delays performance) and/or any failure to obtain necessary permits, consents etc. which are not due to SubC’s failure
Customers preparation for supply of Services
The Customer shall ensure that the Services can be carried out in accordance with applicable laws and regulations on working environments, safety etc. Further, the Customer shall carry out any preparatory work necessary for SubC to carry out the Services. Such preparatory work must be carried out at the Customer’s own expense.
Furthermore, and unless otherwise agreed, the Customer shall obtain all necessary permits, consents and approvals etc. which are necessary for SubC to perform the Services.
Completion of Services
The Customer has accepted the Services unless written notice of rejection specifying the reasons for rejection is received by SubC within 3 (three) days after completion of the Services.]
If any test has been agreed between the Parties in respect of the delivery of the Products and/or Services, it shall be performed at the place where the Products and/or Services are delivered. Customer shall pay for its own representatives in connection with any test. SubC shall only be obliged to perform additional tests at the account of SubC if the test materially fails to comply with the agreed requirements.
SubC warrants that the Products will conform in all material respects to the specifications for such Products and will be free from material defects in workmanship and material under normal use. Further, SubC warrants that the Products comply with the law, regulations, and technical standards applicable and agreed.
The Product warranty applies for 12 (twelve) months from delivery of the Products. In case of defects in the Products, SubC may at its sole discretion choose to replace such Products, to refund the purchase price for such Products deducted a reasonable amount for usage or to repair such Products. The repair will in such case be subject to the terms for Services.
SubC warrants that the Services provided will be free from defects in workmanship and in accordance with the requirements of the order confirmation.
The warranty is SubC’s sole obligation in respect of any lack of conformity of Products delivered (except from title) and of Services conducted. SubC makes no warranty with respect to the suitability or fitness for any particular purpose.
The Customer shall immediately notify SubC if the Customer becomes aware of any defect (or ought to have become aware thereof). If the Customer fails to inform SubC immediately and in any event within 12 months from delivery of the Products the Customer forfeits its right to make any claim in respect of the defect.
Any notification of defects shall be made in writing and specify the defect.
The Customer shall indemnify SubC to the extent that liability is imposed on SubC with respect to third party for such damage or loss which SubC is not liable for towards the Customer subject to this clause 13.
SubC is not liable for personal injury imposed on the Customer, the Customer’s employees or any third party, unless the Customer proves that the injury is attributable to SubC’s acts or omissions.
SubC is not liable for damage to real or personal property, for damage to products or material made or provided by the Customer, to products in which these form a part or to damage to real or personal property caused by such products. Further, SubC is not liable for damage to the Customer’s products in which the supplied Products are incorporated.
In case that a third party makes claims against the Customer regarding product liability, the Customer shall inform SubC immediately.
SubC’s product liability, including liability arising by way of indemnity or in tort, must in no event exceed DKK 10,000,000.
Liability for offshore Services and offshore deliveries of Products Indemnification
If SubC’s Services, including installation, repair, inspection, service check etc., are to be performed offshore, or Products are to be delivered offshore each Party shall in such event assume the sole responsibility for its own real and personal property and personnel, including damage to its property and/or injury or death to its personnel (whether owned, chartered, hired or leased by the Party), and shall indemnify and hold harmless the other Party from any loss, claim, demand, liability, damage or costs irrespective of the cause, circumstance or gross negligence of the other Party.
A Party shall indemnify and hold harmless the other Party from loss, claim, demand, liability, damage or costs from any third party with regard to damage to real and personal property or injury or death of personnel suffered by the third party and caused by the Party.
However, this clause 14 does not apply if the loss, damage, injury or death is caused by wilful misconduct by the other Party.
Limitation of Liability (for both onshore and offshore Services and Deliveries of Products)
SubC shall in no event be liable for any business interruption costs, loss of profit, loss of production, removal or reinstallation costs, re-procurement costs, loss of data, injury to reputation, loss of customers or any indirect, special, incidental, consequential, or punitive damages of any nature. SubC’s liability for any claim must not exceed 15 (fifteen) % of the order value giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, by way of indemnity, warranty or otherwise.
SubC is not liable for any claims based on SubC’s compliance with the Customer’s designs, specifications, or instructions or for any repair, modification or alteration of any Products or Services by other parties than SubC or for Customer’s use in of the Products combination with other products or services.
SubC is not liable for defects caused by faulty maintenance on the part of the Customer, by variations of the Products undertaken by the Customer or any third party without SubC’s consent, or by faulty repairs/services by the Customer or any third party. SubC’s liability does not include normal wear and tear, deterioration, or damage attributable to incorrect storage or use or use for purposes other than intended.
SubC is not liable for any delay or any failure in performance if caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, fire, epidemics, insurrection, strikes, lockouts or other serious labor disputes, delayed deliveries and/or non-deliveries, delayed services and/or non-services from subcontractors, riots, earthquakes, floods, explosions, natural disasters or other acts of nature, embargo, restrictions of any governments or other legal authority which affects its performance.
SubC’s obligations so excused will be extended on a day-to-day basis for the time period equal to the period of such excusable interruption.
Intellectual property rights
All intellectual property rights and other rights, including without limitation patents, utility models, design rights, trademarks, copyright, and know-how, relating to the delivered Products and/or performed Services and any and all documentation related thereto are the exclusive property of SubC. The Customer shall respect such rights whether or not they are registered provided that in the event that the Customer delivers all complete design, drawings, specifications and/or technical documents, the Customer shall retain the intellectual property rights relating to the Products
Any intellectual property rights and other rights, including without limitation patents, utility models, design rights, trademarks, copyright and know how developed by SubC in connection with the manufacturing of Products or performance of Services will at all times be the exclusive property of SubC. The Customer shall respect such rights whether or not they are registered.
All drawings and other technical documents regarding the Products or their manufacture submitted by SubC to the Customer, prior or subsequent to the award of an order, must remain the exclusive property of SubC.
SubC will grant the Customer a permanent right of use to the delivered Products upon delivery and payment of the purchase price in full.
The Customer shall indemnify SubC to the extent that liability is imposed on SubC with respect to any claims by a third party for such damages or loss which SubC is not liable for towards the Customer according to this section.
Term and termination
SubC may at any time suspend or terminate any and all orders and claim damages pursuant to Danish law due the Customer’s material breach of the Agreement, including the Customer’s failure to fulfil its payment obligations.
The Customer shall observe full confidentiality regarding information of confidential nature, which the Customer has obtained by reason of the Term and the Parties performance hereunder.
Governing law and disputes
These Terms and any order issued hereunder, and the work performed by SubC are governed by Danish law excluding any international private law rules and CISG.
Any dispute arising must be settled through loyal negotiation between the Parties including negotiations between higher management of both Parties.
All disputes arising out of or in connection with the Agreement that cannot be settled through the Parties’ negotiation must be finally settled by arbitration before the Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced.