Clause 1 – Definitions
1.1 Confidential Information: shall mean all information, data, whether or not in written form, including any intellectual property rights, concerning the business or affairs of a Party.
1.2 Delivery Date: shall be the date specified as such in the Purchase Order.
1.3 Deliverables: shall mean all goods, Services, works, documents, certificates and packaging, as the case may be, to be delivered to Purchaser pursuant to a Purchase Order.
1.4 Documentation: shall mean all drawings, drafts, sketches, information, specifications, calculations, lists of parts, manuals and instruction books which the Supplier shall draft in conformity with the Purchase Order or, in case such provisions are not included in the Purchase Order, which are reasonably required for a complete, proper and safe installation, application, use and maintenance of the Deliverables.
1.5 GTC: shall mean these general terms and conditions applied by Purchaser for the purchase of Deliverables, as specified in the present document.
1.6 Order: the order form which contains specific information regarding the Deliverables to which the Purchase Order pertains, such as but not limited to the specifications, Purchase Price, payment and terms of delivery.
1.7 Party/Parties: Party shall mean Purchaser or the Supplier, Parties means both of them.
1.8 Purchase Order: shall mean the Order, the specification, the Documentation and the GTC, as well as any appendices thereto.
1.9 Purchase Price: is the total value of the Purchase Order, as specified in the Purchase Order exclusive of taxes and levies.
1.10 Services: shall mean work or other services provided by the Supplier which are the subject of the Purchase Order.
1.11 Purchaser: shall mean any of the following companies: Spliethoff’s Bevrachtingskantoor B.V., BigLift Shipping B.V., Sevenstar Yacht Transport B.V., Transfennica Logistics B.V., all having offices in (1042 AA) Amsterdam, at Radarweg 36, The Netherlands, Wijnne & Barends’ cargadoors- en agentuurkantoren B.V., having its office in (9934 AR) Delfzijl at Handelskade Oost 5, The Netherlands, Bore Ltd, having its office in (00120) Helsinki at Uudenmaankatu 16 A, Finland or Transfennica Ltd., having its office in (00130) Helsinki at Eteläranta 12, Finland, including any and all of their affiliated companies and entities.
1.12 Vessel: shall mean any vessel owned, operated or managed by Purchaser.
1.13 Supplier: shall mean the person, firm or company mentioned in the Purchase Order, with whom the Purchase Order is entered into by Purchaser.
Clause 2 – General Provisions
2.1 Applicability of general terms and conditions applied by the Supplier and, to the extent applicable, the Supplier’s sub-contractors, is at all times excluded, unless otherwise agreed in writing between the Parties.
2.2 A Purchase Order, as well as any modification thereof and additions thereto, can only be proven by means of a written document signed by both Parties.
2.3 The Supplier is not allowed to use Purchaser’s trade names and trademarks without prior written approval from Purchaser and the Supplier is not allowed make mention, in any form whatsoever, of Purchaser as its client.
2.4 In case of any conflict between the provisions of the Purchase Order, the documents shall be given priority in the following order:
a) Purchaser’s Purchase Order;
b) the GTC;
c) all other appendices to the Purchase Order.
2.5 The Purchase Order constitutes the entire agreement between the Parties and supersedes any and all previous agreements, correspondence and negotiations between them relating to the Deliverables.
2.6 In case delivery has been agreed according to Incoterms®, the most recent version in force at the date the Purchase Order was agreed shall apply.
2.7 Notices, claims and the like which the Purchase Order requires to be presented in writing, shall be sent by letter or electronic mail to the other Party’s appointed representative without unreasonable delay.
2.4 The headings in these GTC are inserted for convenience only and shall be ignored in construing these GTC.
Clause 3 – General obligations of the Supplier
3.1 Supplier shall prepare and provide quotation documentation and order confirmations free of charge and any deviation from Purchaser’s order or request shall be expressly specified without undue delay.
3.2 The Deliverables shall in all respects meet the specifications of the Purchase Order, shall be of good quality and fit for the intended purpose. In addition, Supplier shall perform any Services with due diligence and in accordance with industry standards.
3.3 The Deliverables shall be properly packed as required by the nature of the Deliverables and at all times comply with the CLP Regulation (Regulation (EC) 1272/2008), as well as ISPM 15. The accompanying delivery note shall mention the Purchase Order number, as well as other agreed references.
3.4 Supplier shall comply with and shall ensure that all sub-contractors comply with all applicable national and international laws, rules, regulations, orders, conventions, directives or ordinances in force which are applicable to performance or production of the Deliverables and/or relate to the provision, licensing, approval, certification or classification of the Deliverables.
3.5 Supplier shall not assign the Purchase Order or any of its obligations thereunder to a sub-contractor without prior written approval from Purchaser, which approval shall not be unreasonably withheld. Supplier shall ensure that any and all rights of Purchaser under the Purchase Order and these GTC shall be made applicable to the sub-contractor(s).
Clause 4 – Insurance
4.1 Supplier shall at all times procure and maintain at its own expense appropriate insurance cover, including, but not limited to liability insurance, adapted to Supplier’s operations and the nature of the Deliverables.
4.2 At Purchaser’s first request Supplier shall provide copies of the insurance certificates and conditions of such insurances.
Clause 5 – Personnel
5.1 Purchaser shall not be deemed to be the employer of Supplier or its personnel, even if such personnel performs Services in co-operation with Purchaser personnel, either at Purchaser’s premises or on board a Vessel.
Clause 6 – Confirmation and Acceptance
6.1 The Purchase Order placed by Purchaser shall only be considered accepted and an agreement concluded between the Parties in case the Supplier has confirmed acceptance of the Purchase Order in writing within two (2) working days from receipt of the Purchase Order.
Clause 7 – Installation and Tests
7.1 The provisions of this clause 7 shall only apply if it has been agreed that Supplier shall perform installation work and/or tests at Purchaser’s premises or the Vessels.
7.2 Delivery takes place when the installation work and/or tests have been completed and Purchaser has confirmed in writing that the Deliverables have been accepted. Such confirmation shall be given without undue delay.
7.3 Timely before commencement of the installation work and/or tests Supplier shall provide Purchaser with a list of goods and/or services which Purchaser shall provide to assist in the installation according to the Purchase Order.
7.4 Unless otherwise agreed in writing between the Parties, the Purchase Price to be paid by Purchaser shall include costs of installation work and/or tests.
Clause 8 – Late Delivery
8.1 Supplier shall deliver the Deliverables on the agreed date or dates of delivery.
8.2 If Supplier has reason to believe that he will not be able to meet the agreed delivery date(s), he shall immediately notify Purchaser in writing stating the reason for the delay, the effect on the agreed delivery date(s) and include a proposal on how the delay can be minimized. Unless the delay is caused by Purchaser, Supplier shall bear all costs related to the delay.
8.3 In the event that Supplier foresees that he will not be able to deliver on the agreed date for delivery or within the agreed window of for delivery, the Parties may agree (an) alternative date(s) for delivery.
Clause 9 - Delivery
9.1 In case the Deliverables include goods, delivery shall be deemed to have taken place when the same have been handed over to Purchaser or delivered in accordance with the agreed Incoterm(s)® and, if applicable, installation work and tests have been completed and accepted by Purchaser by means of signing a work order.
9.2 In case the Deliverables include Services, Supplier shall notify Purchaser either in writing or orally as soon as possible once Supplier considers the Services provided as completed. Without undue delay after receiving the aforesaid notice, Purchaser shall in writing or orally either accept the Services as completed or declare that the Services are not considered completed and are not accepted and state the reason for this. Delivery will not be deemed to have taken place before all Deliverables have been accepted by Purchaser in writing.
Clause 10 – Defects
10.1 Purchaser shall inspect the Deliverables within a reasonable time after delivery and thereafter issue written notice of defects to Supplier pursuant to clause 10.2 of these GTC if required. Purchaser’s obligation to perform inspection applies correspondingly where Supplier performed rectification work.
10.2 Purchaser shall issue a written notice of defect to Supplier within a reasonable time following discovery of any defect and, if found, its causes and in no event later than 12months after delivery. The same time limit applies in respect of any replaced or repaired parts, calculated from the time the replacement or repair took place.
10.3 Once Purchaser notifies Supplier of a defect, Supplier shall commence rectification of the defect, including any resulting damage to the Deliverables, without delay. The rectification work shall entail that the Deliverables are rectified to the contractual level as quickly as possible. Rectification work shall be performed at Supplier’s risk and expense.
10.4 If Supplier fails to remedy the defect(s) within reasonable time, Purchaser is entitled to remedy the defect itself or employ a third party to do so at Supplier’s expense, or to demand redelivery or reduce the contract price accordingly. The same shall apply if awaiting Supplier’s remedy will cause substantial inconvenience to Purchaser. In such event, Supplier shall be notified in writing prior to commencement of the rectification work.
10.5 Purchaser is entitled to claim compensation from Supplier for all losses suffered due to defects to the extent possible under the applicable law. Nevertheless, such compensation shall not be in excess of the Purchase Price.
10.6 Purchaser may terminate the Purchase Order if a defect (or failure to rectify such defect) constitutes a material breach of the Purchase Order. In such event Purchaser is entitled to rectification of the defect, re-performance or substitution of the Deliverables as well as damages as provided for under these GTC.
Clause 11 – Cancellation
11.1 Purchaser may at any time without cause cancel the Deliverables or parts thereof with immediate effect by means of written notification to Supplier.
11.2 Following cancellation Purchaser shall pay for delivered and performed Deliverables.
Clause 12 – Payment and Prices
12.1 Latest within 15 (fifteen) calendar days from acceptance of the Deliverables, Supplier shall submit a final invoice to Purchaser.
12.2 Purchaser shall make payment within 45 (forty five) days after receipt of the invoice, subject to:
a) complete delivery of the Deliverables by the Supplier; and
b) the invoice complying with the requirements provided for under paragraph 12.4 and 12.6 of these GTC.
12.3 If Purchaser fails to pay undisputed amounts by the stipulated date, Supplier shall be entitled to legal interest as provided for in article 6:119a of the Dutch Civil Code as from the day on which payment was due, as well as reasonable costs for attempting to get satisfied on the basis of a settlement out of court, as provided for in article 6:96, paragraph 2 sub c of the Dutch Civil Code.
12.4 The number of the Purchase Order and other agreed references shall be mentioned in any invoice, as well as a specification per item of the Deliverables. Invoices shall be accompanied by copies of work orders, packing lists and other underlying vouchers. Invoices shall also mention any taxes and/or levies which are to be paid by Purchaser. All customs invoices and proofs of origin (if applicable) shall be attached to the relevant invoice. Purchaser is entitled to return invoices which do not meet these requirements.
12.5 Purchaser will not pay any additional costs, such as handling, packaging or invoice fees.
12.6 In the event that Purchaser is to pay for the Deliverables based on time spent and/or quantities, Supplier shall ensure continuous registration and require approval from Purchaser for such time spent and quantities. Details of the approved time and/or quantities shall be attached to the relevant invoice.
12.7 In the event that Supplier fails to evidence that tax and other levies relevant for Purchaser have been paid in accordance with applicable laws and regulations, Purchaser shall be entitled to withhold payment until Supplier either produces such documentation or provides sufficient security for payment of such taxes and levies. Purchaser may at any time recover from Supplier any liability incurred by Purchaser as a consequence of Supplier’s failure to pay the required taxes and levies.
Clause 13 – Termination
13.1 Either Party may, without any liability, give notice in writing to the other Party terminating the Purchase Order with immediate effect if the other Party:
a) commits a material breach of the terms and conditions of the Purchase Order and, in the event that the breach can be remedied, fails to remedy that breach within a period of 14 (fourteen) days of being notified to do so;
b) applies for its bankruptcy or suspension of payment or is declared bankrupt;
c) suspends or ceases, or threatens to suspend or cease all or a substantial part of its activities or winds up its company.
13.2 Purchaser may without liability give notice in writing to Supplier terminating the Purchase Order with immediate effect in case:
a) part or all of Supplier’s assets intended or useful for the performance of the Purchase Order are seized, attached, frozen or have in any other way become unavailable;
b) Supplier undertakes any act, deed or matter which would result in the creation of any lien or encumbrance of any kind whatsoever on any property of Purchaser;
c) there is a change of control of Supplier, by means of transfer of ownership of shares or otherwise;
d) Purchaser receives notice as referred to in clauses 8.2, 15.3 and 19.2 hereunder.
13.3 Termination shall not affect any accrued rights, remedies, obligations or liabilities of the Parties existing at the time of termination of the Purchase Order.
13.4 Upon termination, each Party shall treat Confidential Information in accordance with clause 18 of these GTC.
13.5 Conditions which expressly or by implication survive termination of the Purchase Order shall continue to be in full force and effect.
Clause 14 – Limitation of Liability
14.1 Neither Party shall under any circumstances whatsoever, whether in contract, tort (including negligence), breach of statutory duty or otherwise, be liable to the other Party for any trading losses, loss of profit, loss of goodwill, loss of production or any indirect or consequential damage suffered.
Clause 15 – Force Majeure
15.1 For the purpose of the Purchase Order a ‘Force Majeure Event’ means, in relation to either Party, any act, event or circumstance beyond the reasonable control or ability of a Party to avoid, acting prudently and reasonably, and without the fault or negligence of such Party affected by such circumstance that directly, materially prevents or delays the performance of such Party’s obligations under the Purchase Order, including the following to the extent that the foregoing requirements are satisfied in respect thereof:
a) natural disasters such as flood, fire, storm, cyclone, earthquake;
b) highly infectious or contagious diseases;
c) acts of war or insurrection such as declared or undeclared war, civil war, uprising, guerrilla, riots, acts of terrorism or any other hostile act;
d) shortage or non-availability of fuel, materials, parts, labour (except for own personnel) or transportation generally;
e) labour disputes or any other labour conflict (not involving the employees of that Party)
f) government action, such as laws, rules, regulations, directives or orders promulgated by any governmental entity or body, having or claiming to have, jurisdiction over the Parties or the activities under the Purchase Order;
g) any other cause beyond the reasonable control of the Party claiming that its performance obligations have been affected by a Force Majeure Event similar to, or different from, those mentioned above.
15.2 Neither Party shall be liable to the other Party, nor be deemed to have defaulted under or breached the Purchase Order for failure or delay in fulfilling or performing any obligation under the Purchase caused by a Force Majeure Event.
15.3 In the event that a Force Majeure Event continues for a period of 30 (thirty) days or more, or Supplier reasonably expects that the Force Majeure Event will continue for a period of 30 days or more, he will give Purchaser written notification thereof.
Clause 16 – Transfer of Title and Risk
16.1 In the event that the Deliverables are manufactured or performed specifically for Purchaser, the Deliverables are Purchaser’s sole property as and when the Deliverables are produced or performed. All other Deliverables become Purchaser’s sole property as and when they are paid for or delivered, whichever occurs first.
16.2 All risks associated with the Deliverables will remain with Supplier until delivery has taken place in accordance with clause 9 of these GTC.
16.3 Supplier shall clearly mark Deliverables in its possession that are Purchaser’s property and, in case possible, keep them separated from other goods.
Clause 17– Intellectual Property Rights
17.1 Unless otherwise agreed between the Parties in writing, intellectual property rights, such as but not limited to patents, trademarks, copyrights, drawings, models, databases, tradenames and trade secrets, specifications and software constitute part of the Deliverables and shall be the property of the Purchaser to the extent they are:
a) specifically prepared by Supplier in connection with the Deliverables;
b) necessary for the use of the Deliverables;
17.2 To the extent applicable, Purchaser shall be granted appropriate licenses of use to those rights which are required to properly complete, operate, maintain, repair or modify the results of the Deliverables, or of the product to which the Deliverables are related.
17.3 The Supplier shall indemnify, defend and hold harmless Purchaser, its affiliates and their officers, employees, agents and sub-contractors against all liabilities, damages, losses, costs or expenses (including, without limitation, legal fees and expenses) arising out of any suit, claim, or proceeding alleging that the Deliverables provided under the Purchase Order violate or infringe any intellectual property.
Clause 18 – Confidentiality
18.1 All information exchanges between the Parties shall be considered Confidential Information, unless otherwise provided in the Purchase Order or under these GTC and shall not be disclosed to any third party.
18.2 A Party may nevertheless make Confidential Information available to third parties in the event that disclosure is required to comply with any applicable laws, regulations, court decisions or arbitral awards.
18.3 Supplier shall not issue any press release, refer to or make use of Purchaser’s business name(s) and logo(s) or otherwise advertise or make public statements that the Purchase Order has been entered into without the prior written permission of Purchaser.
18.4 The obligations under this clause 18 shall remain in force for 5 (five) years after termination of the Purchase Order.
Clause 19 – Assignment and Change of Control
19.1 Purchaser is entitled to assign its rights and obligations under the Purchase Order, partly or in whole, to any of its affiliates.
19.2 Supplier shall notify Purchaser timely and in writing of any change of control over its company will take place.
Clause 20 – REACH Regulation
20.1 Supplier warrants that it, and all sub-suppliers of substances used in relation to the Deliverables, complies with the REACH Regulation (Regulation (EC) 1907/2006), as amended from time to time.
20.2 Supplier undertakes that all those substances used in the production and/or are incorporated into the Deliverables which are subject to the registration under the REACH Regulation, have been pre-registered and either have been or shall be registered by Supplier and/or by its sub-suppliers covering the uses of Purchaser, in each case in accordance with the requirements of the REACH Regulation. For the avoidance of doubt, this undertaking also applies to any ancillary substances and/or products, such as coatings, colours or micronutrients which have been added to or incorporated in the Deliverables. Furthermore, it is acknowledged that Supplier and/or its sub-suppliers shall not register the substances as intermediates.
20.3 Supplier warrants that there are no substances of very high concern used in the production and/or incorporated in the Deliverables.
20.4 Supplier shall ensure at all times that Purchaser is provided promptly with relevant and up to date Safety Data Sheet(s) in accordance with the requirements of the REACH Regulation as well as the CLP Regulation (Regulation (EC) 1272/2008).
Clause 21 – Regulation on Ship Recycling
21.1 Supplier warrants that it, and all sub-suppliers of substances and materials used in relation to the Deliverables, complies with Regulation (EU) No 1257/2013, Regulation on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC as amended from time to time (“SRR”).
21.2 Supplier warrants that it will identify and declare the presence of a hazardous material included in the Annex II of the SRR if it exceeds the threshold value. This provision does not apply to chemicals which do not constitute a part of the finished product.
21.3 Supplier shall provide ‘Supplier’s Declarations of Conformity’ (“SDoC”) and ‘Material Declarations’ (“MD”) in any case, even when no hazardous materials are contained above the applicable threshold values. Supplier shall prepare and sign SDoC’s and MD’s in accordance with IMO guidelines and they should be in the format provided in the IMO guidelines.
Clause 22 – Regulation on Marine Equipment
22.1 Supplier warrants that any Deliverables placed or to be placed on board Purchaser’s Vessels shall comply with Directive 2014/90/EU on marine equipment and any implementation thereof in national laws. Such Deliverables shall have the wheel mark referred to in the afore referenced Directive affixed to them.
22.2 Supplier shall impose the obligations following from paragraph 1 of this clause on all of its sub-suppliers.
Clause 23 – Cyber Security
23.1 The Supplier shall implement and maintain appropriate technical and organisational measures, as well as adequate security programs and procedures, in order to ensure a suitable level of security against cyber risks and in order to prevent any accidental, unauthorized, or unlawful access to, as well as to prevent any coincidental, unauthorized or unlawful entry into, as well as the processing, destruction, loss, modification, damaging and/or disclosing of any Confidential Information. The Supplier shall ensure that the IT-systems it uses to provide Deliverables and Services under any Purchase Order shall comply with any applicable laws and regulations and industry standards.
23.2 The Supplier shall ensure that the measures set out under paragraph 1 of this clause in any event comprise:
(a) the installation of demarcated access zones by firewalls and internet gateways in order to protect the networks and IT-systems of the Supplier against cyber-attacks from the internet and external networks;
(b) a secure configuration of the networks, IT-systems, applications and equipment of the Supplier, including encryption of portable equipment;
(c) the application of physical and logical checks which limit the access to authorized users and only to the extent such access is required for the provision of Deliverables and Services pursuant to a Purchase Order;
(d) the use of software developed to prevent access of malware into the IT-systems, networks and equipment of the Supplier;
(e) continuous improvement of cyber security aimed at identifying, assessing and applying IT-systems, applications and equipment of the Supplier;
(f) training and create awareness of the personnel, agents and servants of the Supplier in the field of information security in accordance with these GTC.
23.3 The Supplier shall:
(a) investigate any coincidental, unauthorized or unlawful access, processing, destruction, loss, modification or disclosure of any data related to the Deliverables and Services and/or any and all cyber-attacks on the IT-systems in use by the Supplier (“Security Incidents”) and to investigate any suspected Security Incident, and
(b) to immediately notify the Purchaser of any such Security Incident.
23.4 In case there is a Security Incident as a consequence of any act or omission of the Supplier, the Supplier shall, for its own account, provide any required assistance as requested by the Purchaser, inclusive of any notification required by law.
Clause 24 – Standards of Business Conduct
24.1 Supplier shall apply standards of business conduct in accordance with Purchaser’s Code of Conduct for Suppliers 2017 a copy of which shall be provided upon request.
Clause 25 – Applicable law and jurisdiction
25.1 The Purchase Order shall be governed by and construed in accordance with the laws of The Netherlands. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
25.2 Any dispute, claim or action arising out of or in connection with the Purchase Order shall be exclusively referred to the Court of Amsterdam, The Netherlands.
