EMS’ Generel Terms & Conditions
Unless otherwise agreed in writing, the following General Terms and Conditions for the supplies and/or services specified in the order (hereafter referred to as “Sales”) shall be effective (hereinafter referred to as the “Terms”) for Esbjerg Maritime Service ApS, CVR no.
33387997 Lillebæltsvej, 6715 Esbjerg N, Denmark (hereinafter referred to as EMS),
The Customer’s General Conditions of Purchase shall under no circumstance apply unless explicitly accepted in writing by EMS irrespective these are a part of the Customer’s procurement documents, purchase order, acceptance letter or similar.
When EMS has submitted an order confirmation to the Customer an agreement (hereinafter “Agreement”) has been made between the parties.
Unless otherwise agreed, all prices are in Danish kroner exclusive VAT, freight, customs, taxes and other expenses. If the prices of the offered or agreed delivery or service is changed as a result of the changes in the purchasing prices, commodity prices, exchange rates, freight, customs, taxes, change in laws and regulations i.e. regarding hired out personnel, collective agreements etc., EMS is entitled to adjust the offered and / or agreed prices towards the Customer. Unless otherwise agreed the price will be Ex Works.
All variable costs are defrayed by the Customer, including crew changes, meals and accommodation, weather downtime, maritime cost, vessels and charter costs, air freight costs, or freight charges and/or transportation to and from the work site.
EMS prices and time schedule are based upon unrestricted access to the work at all times and timely deliveries by Customer in order to perform the work. Restricted access and/or Customer’s delay shall entitle EMS to extension of time and additional payment of extra costs incurred by EMS by such delay.
By late payment an interest rate equal to 1,5 % per month will be charged from the due date. Payment by set-off cannot take place if the counterclaim has been disputed by EMS. Late payment is deemed a material breach.
4. Product Information
Drawings, design, specifications and the like, which have been submitted by EMS before or after conclusion of the Agreement, shall remain the property of EMS and shall not be disclosed without EMS’s written consent.
5. Delivery Time
Any agreed delivery time is subject to the prompt and orderly fulfilment of the obligations of the Customer.
Unless otherwise agreed in writing a postponement of the delivery time by 10 working days will be considered as delivery on time in every respect, without any remedies to the Customer.
To the extent the Customer is not ready to receive the delivery or delays the delivery, EMS is entitled to partial delivery and to submit a corresponding invoice.
The time of delivery is extended reasonably in case of unforeseeable events, which EMS or it’s suppliers despite reasonable care and efforts, and by using appropriate means, are not able to avert, irrespective of whether such circumstances occurred at EMS’s company or EMS suppliers. Such unforeseeable events include breakdowns, official interventions, power supply difficulties, transport deficiencies, delay in supply of important raw materials or products, as well as strike and lockout, Covid-19 restrictions or similar pandemic restrictions. EMS will inform the ordering party about such impediments as soon as practicable.
The time extension shall at least consist of the actual adverse impact in the delivery time in addition to any extra time required due to de- mobilisation and re-mobilisation and the like.
If a firm delivery date is confirmed in writing by EMS, the liquidated damages for delay shall be payable at a rate of 0,5 % of the purchase price for the Sales for each complete week of delay. The liquidated damages shall not exceed 10 % of the purchase price of the sales. Agreed liquidated damages shall be the Customer’s sole and exclusive remedy in event of delay.
6. Defects and Warrenty
Upon delivery the Customer shall carry out a visual inspection of the delivery.
If the Customer wants to invoke a defect the Customer shall without undue delay after the defect has been discovered or should have been discovered give EMS written notice specifying the defect.
If the Customer has or should have discovered a defect and the Customer fails to make a written notice to EMS as stated the Customer shall forfeit his right to make any claim in respect of the defect.
The warranty period is 12 months from delivery ex works.
EMS is not liable for implied warranties of merchantability, fitness for purpose, defects caused by materials supplied by the Customer, constructions or design which are stipulated/specified by the Customer, mistakenly performed preparatory work performed by the Customer and circumstances occurring after the takeover including defects caused by faulty use, repair or maintenance on the part of the Customer, changes in the delivery performed by the Customer without EMS’s Written Consent and normal wear and tear or deterioration.
EMS is obliged to remedy any defect. At EMS’s choice defects in the services or products shall be remedied, replacement or provide a deduction of the purchase price. The warranty for any remedied defect shall expire 18 months after delivery ex works of the defective original part.
EMS shall have no liability for defects beyond the above. EMS’s liability is limited to direct and documented costs connected to the defect.
Defective products within the warranty period shall be returned to EMS to the extent possible. The Customer is obliged to deliver the products and/or equipment to EMS for reparation and shall bear all costs and transportations risks in this regard. The Customer shall bear the cost for any kind of offshore operation or activity i.e., transportation, board and lodging, lifting accommodation and the like.
If EMS finds it is necessary to repair on site, all travel related expenses, including maritime costs, air freight costs, vessels and charter costs or freight charges will be separately invoiced.
7. Retention of title
EMS reserves, with the restrictions imposed by mandatory law, the right of ownership to the products sold, until the full purchase price and those in connection with the delivery of the sales object incurred expenses has been paid by the Customer or the agreed security has been provided and until this has taken place the Customer is not entitled to resell the sales object or to dispose of the articles in such a way that conflicts with EMS’s retention of title.
8. Limitation of Liability regarding Customer’s Property
EMS does not make, by virtue of any agreement or otherwise, and hereby expressly disclaims, any liability of any kind with respect to any handling, storage and warehousing of customers or Customers other contractor’s property regardless the property is located at EMS facilities or at third party facilities according to or as a natural part of the agreement.
For the avoidance of doubt, (a) EMS is not responsible for any damage to Customers property, and (b) Customer bears all risk of any damage, loss, liability, cost, or expense related to any damage to Customer’s property or products regardless that Customers property or products are being stored or placed at EMS’s facilities.
Customer shall defend, indemnify and hold EMS harmless against any claims, demands, causes of action, judgments, proceedings, awards, damages, losses, fines, penalties, costs, expenses and liabilities, including litigation costs and reasonable attorney’s fees (“claim(s)”) arising out of death, illness or injury to any person, or property loss or damage, or loss, damage or cost, as a result of or in connection with EMS´ handling, storage or warehousing of Customer’s property or any components or products owned by customer regardless of the goods or property or Customers personnel is located at EMS’s facilities or at third party facilities according to or as a natural part of the Agreement.
Customer shall take out insurances covering any and all damages and losses including damage, fire and water damage and theft regardless of cause to Customer’s property, while it is being handled, stored or warehoused at EMS facility. Customer shall agree to make EMS co-insured on all policy’s and waive all rights to subrogation or recourse against EMS.
If the Customer handles own property or products at the EMS facility, the Customer are obliged to maintain and keep in force adequate general third-party liability insurance, including public liability and products liability insurance covering any and all damages to EMS property, products and personnel.
All documents, data, design, calculations and work papers prepared or furnished by EMS are instruments of service or products and will remain EMS’s property. Designs, reports, data and other work product delivered to or on behalf of the Customer are for the Customers use only for the limited purposes disclosed to EMS and subject to the Customer paying for the services to provide said work product. Any delayed use, use at another site, use on another project, or use by a third party will be at the user’s sole risk and the Customer agrees to indemnify and defend EMS against any liabilities resulting there from. Any technology, methodology, or technical information created or developed by EMS will remain its property.
EMS maintains in effect at all times insurance coverage for engineering services at the limits set forth herein:
Professional Liability: DKK 500.000 (per occurrence)
DKK 1.000.000 (per year for any and all occurrences)
10. General limitation of liability and Indemnifications
Regardless of anything stated contrary hereto in the above or elsewhere in the Agreement, the maximum, aggregated, cumulative legal contractual liability for EMS under this Agreement shall be limited to DKK 1.000.000 for all incidents or liability occurred under this Agreement.
Save for indemnification, defence and hold harmless obligations under the Agreement, all claims for consequential damages, punitive damages and/or losses and/or any indirect damages and/or losses what so ever mentioned as but not limited to loss of production, loss of profit, loss of goodwill, loss of turn over, loss of customers, loss of data, loss of third parties, loss of use of assets, loss of contracts, business interruptions or similar or identical consequential and/or indirect losses and any other indirect losses under this Agreement are excluded from both parties liability under the Agreement.
Customer shall defend, indemnify and hold EMS harmless against any claims, demands, causes of action, judgments, proceedings, awards, damages, losses, fines, penalties, costs, expenses and liabilities, including litigation costs and reasonable attorney’s fees (“claim(s)”) arising out of death, illness or injury, or property loss or damage, or loss, damage or cost, as a result of or in connection with (i) the negligent act or omission of Customer or any of its employees under the agreement, (ii) Customer´s (or any of its employees’) breach of Customer´s obligations under the agreement or (iii) any use of EMS products, deliveries, letting of equipment, services, engineering services, hiring out of manpower or any other EMS services on offshore installations and vessels (excluding works performed on ships in harbour or ships docked).
11. Force Majeure
Neither Party can be held responsible for non- fulfilment of its obligations, provided the non- fulfilling Party proves that this is caused by force majeure.
The following circumstances shall be considered as Force Majeure if they impede the performance of the agreements or makes performance unreasonably onerous and if they occurs after the offer has been made and which are beyond the control of EMS or it suppliers including: industrial disputes (national or local strikes and lockouts), fire, war, rebellions, riots, weather conditions, natural disasters, pandemics, epidemics, Covid-19 restrictions and similar pandemic restrictions, exchange controls, public seizure, ban on import- and export, interruption of the common communication services including supply of energy, a substantial increase in prices- and/or duties, exchange rate fluctuations, difficulties with production- and delivery, delays from suppliers which are due to circumstances which EMS or its suppliers cannot be blamed and the occurrence of force majeure and/or hardship among relevant suppliers.
12. Product Liability
Product Liability damages regarding Customer´s products which have been processed and incorporated in Customers products by EMS shall be limited to DKK 1.000.000 per year for all incidents or liability occurred in the same and in a given calendar year.
EMS is only liable for Product Liability on its own products according to the provisions of the Danish Product Liability Act. EMS renounces liability for product damages on any other basis. The Product Liability shall be limited to DKK 10.000.000 per year for all incidents or liability occurred in the same and in a given calendar year. EMS does neither assume any Product Liability for damage to Customer’s nor Customer’s client’s property (real estate, equipment, tools, buildings and similar).
The Customer shall immediately inform EMS if a third-party claims product liability towards the Customer. To the extent EMS will be imposed liability against a third party, the Customer is engaged to compensate EMS to the same extent, as EMS’s liability is limited cf. the above- mentioned.
If EMS should be sued by a third party due to product liability the Customer accepts to be joined as a party during the proceedings or as a sued by the Court or Arbitration Tribunal which hear the case.
13. Disputes, Governing Law and Jurisdiction
Disputes between the parties which cannot be settled amicably shall be settled by the Court of Esbjerg by use of Danish Law. However Danish private international law which refers to foreign law and the International Sale of Goods Act (CISG) shall not be applicable.