GENERAL TERMS AND CONDITIONS OF CONTRACT
WÄRTSILÄ MARINE (JUNE 2019-GE)
These General Terms and Conditions of Contract (“Conditions“) apply, to the exclusion of any other general terms and conditions, to any Contract for the supply of goods and services, as defined below, between any authorised company, agent or service station of Wärtsilä Corporation (“Supplier”) and any customer (“Buyer”). Supplier and Buyer are singularly referred to as a "Party" and together referred to as the “Parties”.
The following terms have the meaning set out below when used in the Conditions or in the Contract.
2.1 “Contract” means any agreement for the Supply and/or Services concluded between the Parties or an acknowledgement or confirmation of order, together with appendices, and include these Conditions.
2.2 “Contract Price” means the total of the amounts due from the Buyer to the Supplier under the Contract.
2.3 “Delivery” means the delivery of Equipment or Spare Parts pursuant to the Contract.
2.4 “Equipment” means and includes any goods, items, documentation and certificates to be delivered by the Supplier pursuant to the Contract.
2.5 “Intellectual Property Rights” means patents, trademarks, copyrights, trade names, designs, product descriptions and any other intellectual property, including all registrations, applications and licenses therefore, as well as know-how, including inventions, confidential and proprietary industrial or commercial information or techniques in any form and trade secrets, drawings, formula, test results, reports, project reports and testing or manufacturing procedures, instruction and training manuals.
2.6 “Normal Working Time” means working time consisting of forty (40) hours spread over five (5) working days not exceeding eight (8) hours per day.
2.7 “Services” means the services or any work that the Supplier has undertaken to perform pursuant to the Contract.
2.8 “Software” means any software program and related documentation delivered to or made available for the use of the Buyer as part of the Supply or Services, including software embedded in hardware, installed in Buyer’s technical environment or made available by Supplier.
2.9 “Spare Parts” means the original spare parts, original, auxiliary and exchange parts and reconditioned spare parts supplied for the Equipment under the Contract.
2.10 “Supply” means the Equipment, Spare Parts and/or Software collectively to be supplied under the Contract.
2.11 “Vessel” means the individual vessel, construction or structure owned by the Buyer or any third party in respect of which any Supply or Services are supplied under the Contract.
2.12 “Wärtsilä Company” means any business entity in which Wärtsilä Corporation holds a controlling proportion of shares or which has been set up as a joint venture between any Wärtsilä Company and any third parties.
3. CONTRACT PRICE
3.1 The Contract Price does not include and the Buyer shall bear or reimburse the Supplier for any taxes, duties or other official charges, including, but not limited to value added tax or any taxes raised on the Supply or Services, custom and import duties or any other charges on the Contract Price or any part thereof.
3.2 The Contract Price includes the Supplier’s standard transport packing materials. The Buyer must advise the Supplier and be responsible for the additional costs of any special requirements for packing or storage.
3.3 If any payment due from the Buyer under the Contract is not received by the Supplier, or if any payment security agreed to be provided or opened is not provided or opened as required by the Contract, without prejudice to the Supplier’s rights under the Contract, the Buyer shall pay interest on any amounts due or to be covered by the payment security at the rate of one (1) month´s Euro Interbank Offered Rate (EURIBOR) prevailing at the due date plus three (3) percentage units per annum/pro rata from the date that payment or provision of the payment security is due until the payment is received in full or until the payment security is provided or opened.
4. VARIATION ORDERS
4.1 Either Party may, prior to the Delivery or completion of Services and subject to the limitations set out in Clause 4.3, request variations in the originally agreed scope of supply. Such Party shall make a request for a variation by written notice to the other Party with an exact description of the variation requested.
4.2 The Supplier shall, without undue delay, after receipt of a request for a variation or after having himself proposed a variation inform the Buyer in writing whether and how the variation can be carried out stating the effects of the variation on the Contract Price, the estimated time for Delivery or completion of the Services and other terms of the Contract. The Supplier shall also give such notice when variations are required by reason of changes in laws and regulations.
4.3 The Supplier is not obliged to carry out variations before the Parties have agreed on how the variation will affect the Contract Price, the time for Delivery or completion of the Services and other terms of the Contract, including issuance a of payment security for the increased price. For the avoidance of doubt, if the Supplier for any reason carries out the requested variation before the Parties have agreed its effects, such performance is deemed to have been made in good faith and shall constitute neither a waiver of any of Supplier’s rights nor Supplier’s acceptance of Buyer’s requests.
5. DELIVERY AND RETENTION OF TITLE
5.1 Equipment and Spare Parts shall be delivered at the place named and on the terms set out in the Contract. All terms used in this regard are interpreted and construed in accordance with Incoterms® 2010.
5.2 On Delivery, the Buyer, its representative or an internationally recognised inspection service shall, as soon as possible and at the cost of the Buyer, inspect the Equipment and Spare Parts. The Buyer shall, within three (3) calendar days of such inspection, give a written notice to the Supplier of any relevant matter the Buyer considers not to be in conformity with the Contract. If the Buyer fails to give such notice, the Equipment and Spare Parts shall be deemed to have been delivered fully in conformity with the Contract.
5.3 The Supplier may make improvements to any items of the Equipment not yet delivered.
5.4 The origin of the Supply will be at Supplier’s discretion.
5.5 The Supplier retains title and ownership of the Equipment and Spare Parts which shall automatically pass to the Buyer only on receipt of the Contract Price in full. Despite of retention of title, risk passes to the Buyer at Delivery.
5.6 The Buyer warrants to preserve and protect the Supplier’s rights and title in the Equipment and Spare Parts.
6. DELAYS CAUSED BY SUPPLIER OR BUYER
6.1 If the supply of the Supply is delayed due to reasons attributable to the Supplier and the Buyer has suffered a loss as a consequence, the Buyer is entitled to liquidated damages calculated from (fourteen) 14 days after the date on which delivery should have taken place (“grace period”) at zero point twenty-five percent (0.25%) of the value of the delayed part of the Supply supplied per each full week of delay. The total amount of liquidated damages under Clause 6.1 to be paid by the Supplier in consequence of the Supplier’s delay shall in no case exceed five percent (5%) of the part of the Contract Price which is payable for the Supply in respect of the Vessel affected by the delay. These liquidated damages are the Buyer’s only remedy for delay.
6.2 If performance of any obligations under the Contract is delayed for any reasons attributable to the Buyer or at his request, without prejudice to the Supplier’s rights under the Contract,
a) the Contract Price is increased by zero point six percent (0.6%) for each month of delay up to and including the month of actual Delivery; and
b) the Supplier may adjust the test schedule and the date, mode or schedule of Delivery and charge the Buyer for all costs resulting to the Supplier from such delay, including but not limited to storage, transportation, insurance and maintenance of the Equipment and Spare Parts.
6.3 If the Buyer anticipates that he will be unable to accept the Delivery of the Supply at the time set forth in the Contract, he shall notify the Supplier in writing stating the reason and the time when he anticipates being able to accept the Delivery. Without prejudice to Clause 6.2 above, the Buyer shall pay the part of the Contract Price that becomes due at the Delivery as if the Delivery had taken place. The Supplier may by notice require the Buyer to accept the Delivery within a final reasonable time.
7. SUBCONTRACTORS AND ASSIGNMENT
7.1 The Supplier is entitled to subcontract all or part of its obligations.
7.2 The Supplier is not responsible or liable for subcontractors selected or appointed by the Buyer.
7.3 Neither Party may transfer or assign rights, benefits, obligations or liabilities under the Contract to any third person without the prior written approval from the other Party, except that the Supplier may assign or transfer any such rights, benefits, obligations or liabilities to any Wärtsilä Company without the Buyer’s consent.
8. BUYER´S SUPPLIES
8.1 Any defect or delay in the supply of information, software, documentation, goods or services to be made by the Buyer (“Buyer’s Supplies”) shall be considered as a delay attributed to the Buyer with application of Clauses 6.2 and 6.3.
8.2 In the event of delays or defects in respect of Buyer’s Supplies, the Supplier may proceed with any tests to be carried out prior to or in the context of the Delivery. The Buyer accepts the results of such tests and accepts the Equipment and/or Software as having been delivered in conformity with the Contract.
8.3 The Supplier’s warranty in respect of Equipment, Software and/or Services supplied does not cover any defects in Buyer’s Supplies and the Supplier shall not be liable for any damage or losses caused by Buyer’s Supplies. The Buyer indemnifies the Supplier in respect of any losses, liabilities or expenses incurred by the Supplier or any third party in connection with any Buyer’s Supplies including liabilities and expenses suffered as a result of the infringement of Intellectual Property Rights of third parties.
9. INSTALLATION AND COMMISSIONING
9.1 The Buyer is responsible for the installation of the Equipment. The installation will be performed by the Buyer in accordance with the guidelines and procedures of the Supplier.
9.2 Following installation, if so contractually agreed, the Equipment shall be checked and started up in accordance with the Supplier’s guidelines and procedures (“Commissioning”). Commissioning does not construe responsibility to the Supplier for the defects of the installation performed by the Buyer. The Supplier reserves the right to stop, re-start and re-perform the Commissioning. In no case will the Buyer commence or carry out the Commissioning without the involvement of the Supplier as contractually agreed.
9.3 If services outside the Supply under the Contract are required, or if the Services supplied under the Contract are performed outside Normal Working Time, the Supplier is entitled to charge the Buyer in accordance with the Supplier’s price list in force at the time of their performance. If Commissioning has not started within eighteen (18) months after Delivery due to reasons attributable to the Buyer, any claims of the Buyer against the Supplier in this respect will be deemed to be waived and absolutely time barred upon the expiry of nineteen (19) months from the date of Delivery.
9.4 The Buyer will, at no charge, provide the Supplier with all assistance required, including, but not limited to, the provision of suitable labour, tools, other implements required, adequate hoisting gear including operating staff, scaffolding, as well as cleaning, packing and lubricant materials, health and safety equipment and any consumables required. This also applies to any work carried out in connection with any modifications or technical changes during Delivery, installation or Commissioning of the Equipment. Furthermore, the Buyer shall, at no charge, supply heating, lighting, water and electricity connections in sufficient capacity and quantity as well as welding gas and other working requirements. The equipment made available by the Buyer will be in full working order and in compliance with relevant health and safety regulations.
9.5 On completion of Commissioning, the Supplier will issue a certificate for the completion of commissioning (“Commissioning Certificate”). Such Commissioning Certificate shall be executed by both Parties and constitutes evidence that the Equipment, Services and/or Software is in conformity with the Contract. The issuance of the Commissioning Certificate shall not be delayed or refused due to minor deficiencies not materially affecting the use of the Equipment and/or Software. If the Buyer takes, or allows a third party to take, the Equipment and/or Software into commercial use prior to the issuance of the Commissioning Certificate, the Buyer is deemed to have waived any warranty claims and the Equipment, Software or Services shall be deemed accepted by the Buyer as having being delivered in all respects free of any defects and in full conformity with the Contract.
10.1 If applicable, the Buyer or its representative and, if required, an internationally recognised inspection service, may witness tests and/or conduct an inspection of the Equipment following its assembly. The place, date and time of the inspection and tests shall be notified to the Buyer one (1) week prior. Inspection and testing will be performed in accordance with Supplier’s procedures at the factory of the Supplier or other place designated by the Supplier during normal working hours. The Supplier bears the costs and expenses of tests carried out at its factory, excluding any costs and expenses of the Buyer. If the Buyer is not represented at the tests after having been duly notified, the test report shall be deemed to have been accepted as being accurate by the Buyer.
10.2 If the results of the Supplier’s standard acceptance test procedures show that any Equipment or Software are defective or not in accordance with the Contract, the Supplier shall remedy the defect or non-conformity at its costs as soon as is reasonably possible.
11. INTELLECTUAL PROPERTY RIGHTS AND LICENSE TO SOFTWARE
11.1 Supplier retains all Intellectual Property Rights to the Supply and Services.
11.3 Buyer will not, and will not permit any other person to, copy or modify any Software and any modification voids any warranty issued by Supplier in respect of the Supply.
11.4 If any third party claims that the Supply or any part thereof would infringe the Intellectual Property Rights of the third party, Supplier will defend Buyer and itself against all such claims and will be fully responsible for the cost of the defense and any cost or liability caused to Buyer as a result thereof. Supplier has the right to decide the course of action to enable the uninterrupted use of the Supply by the Buyer. This may include the payment of the claimed license fees or the removal of the claimed infringement at Supplier’s cost through a modification or replacement of the object of the claim, subject to retaining the essential original features and functionality of the Supply.
11.5 Supplier will however not be responsible to the extent the claim results from any act or omission of the Buyer, such as use of the Supply contrary to the instructions of Supplier or a modification of the Supply by the Buyer. Further the Supplier shall not be responsible for a claim arising from any allegation of, or relating to, an infringement of a patent when the patent application is published after the date of the Contract.
12. LIABILITY FOR DEFECTS
12.1 Supplier warrants that, during the period defined below (“Warranty Period”), the Equipment and Spare Parts will be free of defects in material and workmanship and in conformity with the agreed specifications. The Supplier also warrants that it will use reasonable skill and care in performing any Services and in providing any Software under the Contract.
12.2 The Warranty Period in respect of the Supply and Services supplied starts at Delivery and expires either
i) twelve (12) months after the date on which the Vessel is handed over to the Buyer’s customer or the Supply has been taken into use, including use of the Equipment for power production; or
ii) eighteen (18) months from Delivery of the Supply concerned,
whichever occurs earlier. The Buyer must notify the Supplier in writing of the handing over of the Vessel or taking the Supply into use.
12.3 In case the Supply is ready for Delivery but the Supplier is not able to deliver the Supply due to reasons attributable to the Buyer, the Warranty Period of eighteen (18) months described in Clause 12.2 commences from the date the Delivery of the Supply should have taken place according to the Contract.
12.4 Under this warranty, and subject always to the terms of this Clause 12, the Supplier shall, at its discretion, either repair or replace any defects in the Supply discovered during the Warranty Period. This will be the only remedy available to the Buyer for breach of such warranty.
12.5 The Buyer must give the Supplier detailed written notice of any defect and the Supply or Services affected without delay, but in any event latest within fourteen (14) days after discovery of the respective defect. If such notice is not given within the period stipulated above, or at all, the relevant Supply or Services are deemed to be free of any such defects.
12.6 The Buyer must, immediately after discovery of any defect, take all appropriate steps to mitigate any loss or damage and to prevent any defect from becoming more serious. The Buyer’s failure to do so is deemed to constitute a waiver of its rights under this warranty in respect of the relevant defect.
12.7 Supplier’s obligations under this warranty only become effective, and the Buyer can only make warranty claims, if the Supplier has received all amounts due under the Contract.
12.8 The Supplier is obliged to carry out the dismantling and reinstallation of the defective item or part only if such work requires special knowledge. The Buyer shall at its own expense arrange for any dismantling and reassembly of other components than Equipment, to the extent that this is necessary to remedy the defect.
12.9 Unless otherwise agreed, the Supplier will bear the costs of transporting the defective, repaired or replaced parts to and from the Supplier’s factory in accordance with the delivery term stated in the Contract. The Buyer will bear the additional costs of transporting the repaired or replaced parts from or to another destination than the place of Delivery stated in the Contract. The Supplier is not obliged to pay airfreight of the repaired or replaced part.
12.10 Unless otherwise agreed, services to be performed under the warranty are based on a Normal Working Time. Services performed outside the Normal Working Time are charged to the Buyer as overtime. Any waiting time, for which the Supplier is not responsible, is charged to the Buyer as Normal Working Time. When the Supplier carries out any work in connection with this warranty, the Buyer’s or its customer’s personnel or crew of the Vessel will assist at no cost to the Supplier. At the request of the Supplier, any faulty items of Equipment must be returned and will then become Supplier’s property.
12.11 Supplier’s warranty pursuant to and in connection with the Contract does not cover defects that are connected with or caused by:
a) normal wear and tear;
b) use of parts, spare parts, materials or consumables not supplied or approved by the Supplier;
c) any use, maintenance, service or operation of the Equipment or the Vessel which is not in conformity with the Contract or the Supplier’s or its subcontractor’s manuals or instructions, or which is otherwise not in accordance with normal industry practice;
d) negligence or other improper acts or omissions or breach of contract on the part of the Buyer, or third parties, or their respective employees or agents;
e) the improper installation or modifications of the Supply carried out without the Supplier’s prior written consent;
f) the Supply or Services not being compatible or not functioning with other equipment, software or systems not supplied by the Supplier, unless the Supplier has specifically accepted the responsibility for their interface.
12.12 The Warranty Period for repaired or replaced Supply or Services pursuant to this warranty commences at the date of the repair or correction or of the delivery of the replacement Supply and expires twelve (12) months thereafter, or upon the expiry date of the original Warranty Period in respect of the Supply or Services, whichever occurs later. The preceding sentence does not apply to original parts of the Supply which are not corrected, repaired or replaced. Under no circumstances shall the Warranty Period in respect of any part of the Supply, whether original or replaced, exceed thirty (30) months calculated from the date of Delivery of the respective Supply.
12.13 After a notice of a warranty claim has been received, the Buyer will arrange for the Supplier or its representative to have free access to the Supply and shall be allowed take samples of fuels, lube oils, cooling liquids and other chemicals and any materials used for the operation of the Equipment or Spare Parts, as well as free access to log books and other records containing operating or maintenance information relating to the Supply.
12.14 The warranty set out in this Clause 12 is the only warranty applicable to the Supply and Services supplied pursuant to the Contract. This warranty replaces and excludes, to the extent permissible by law, any other guarantee, warranty and/or condition imposed or implied by law, custom, statute or otherwise and/or resulting liabilities, including fitness for purpose or liability for latent defects. Only those remedies specifically set out in this Clause 12 are available to the Buyer in respect of any defective or non-conforming Supply or Services. The Supplier shall not be liable under the Contract or otherwise, for any economic, indirect or consequential losses or costs, including, but not limited to loss of revenue, loss of profit and loss of use. Further the Supplier shall not be liable for expenses arising in connection with cranage, electricity, scaffolding, assistance of any kind, docking, diving, towage, demounting, mounting, calibration, aligning, performance of sea trials or other tests and inspections or loss of intended sale of the Supply or the Vessel.
13. LIMITATIONS AND EXCLUSIONS OF LIABILITY
13.1 All cases of breach of the Contract and the relevant consequences as well as all rights and remedies available to the Buyer are exhaustively defined and covered by the express terms of the Contract.
13.2 The Supplier shall not be liable under any circumstances, and irrespective of the cause of action, for indirect or consequential losses, such as – but not limited to – commercial or economic losses, loss of production, loss of use, loss of revenue, loss of profit, delay and business interruption and other similar causes or losses, whether direct or indirect. Further, the Supplier is not liable for loss of time, loss of employment or opportunity to utilize the Supply or Services supplied, costs of substituted equipment, towage charges, pollution clean-up costs, docking or diving costs, damage to the Vessel, Buyer’s property or other assets, demounting or mounting costs or/and costs of sea trials or other tests and inspections.
13.3 The limitations of liability contained in this Clause 13 however do not apply where such losses are caused by a breach of duty on the part of the statutory representatives or directors of the Supplier constituting unlawful intent, willful misconduct or gross negligence.
13.4 Insofar as either Party has been held liable in respect of losses or liability excluded or limited by this Clause 13 by the other Party, their insurers or third parties, this other Party will indemnify the Party held liable to the extent of any such liability, including interest and costs.
13.5 In any event, and whatever the cause of action, Supplier’s maximum total liability to the Buyer pursuant to and in connection with the Contract – including the obligation to pay penalties, liquidated damages and regardless of cause, degree of fault, negligence, breach of contract or otherwise – is limited to one third (1/3) of that part of the Contract Price which relates exclusively to the individual Vessel in respect of which the cause of Supplier’s liability has arisen.
13.6 All technical information and/or advice provided by the Supplier, its personnel or subcontractors which is outside the scope of supplies as set out in the Contract or prior to the Contract and not by reference expressly included in the Contract, is intended for informal and confidential information purposes only, and the Supplier assumes no liability for the consequences of the Buyer’s actions, omissions or decisions made or based on such information or advice or for any losses so caused.
13.7 The Supplier is not liable for any acts, omission or work carried out or assistance provided by the Buyer or by any third party, even though carried out with actual or attributable assistance or knowledge of the Supplier.
13.8 The Buyer shall be liable for any damage and any direct or indirect losses caused by any modifications to any part of the Supply not authorised in writing by the Supplier, or caused by the condition of the Vessel or of any equipment, gear or tool furnished by the Buyer and used by Supplier’s personnel.
13.9 The Buyer shall indemnify the Supplier for any third party claims relating to the Supply or Services under this Contract or to a failure by the Buyer to perform its obligations under this Contract or under any agreement with third parties or any other causes of action arising in tort/delict, product liability or otherwise. The Supplier shall give the Buyer written notice of any relevant claim received by the Supplier and give all necessary assistance at the Buyer’s expense.
13.10 The Supplier is not liable for any loss or damage to the Supply, the Vessel, or other property of the Buyer or any other third party related to incompatibility or inability of the Supply to operate or communicate or control, or to be controlled by, any other equipment or parts of the Vessel not forming part of the supplies made under this Contract.
14. IMPORT AND EXPORT RESTRICTIONS
14.1 The Supply and Services shall be delivered subject to all applicable export controls or restrictions imposed on technology and products by any country or organisation or nation, including the United Nations, European Union and United States, which are enforceable in the jurisdiction of the Supplier or any Wärtsilä Company. The Buyer acknowledges that the Supply and all related technical information, documents and materials may not be imported or exported, re-exported, transshipped, traded, diverted or transferred, directly or indirectly, contrary to such controls or restrictions.
14.2 On the Supplier’s request the Buyer will furnish the Supplier with all relevant certificates relating to export control laws, regulations and restrictions, such as, but not limited to, end-user certificates, in form and content specified by the Supplier.
15. ENVIRONMENTAL, HEALTH AND SAFETY RESPONSIBILITIES
15.1 The Buyer is responsible for all costs and expenses related to the management, handling, clean-up, removal and/or disposal of all waste material or hazardous substances as defined by any legislation or international convention relevant or applicable to the Vessel or the Equipment, Spare Parts or Services supplied.
15.2 The Buyer indemnifies the Supplier in respect of and against any claims, fines, penalties and all related expenses arising in connection with such waste material or hazardous substances escaping to or from the Vessel, the Equipment or Spare Parts.
15.3 With respect to any environmental requirements and regulations the Supplier’s sole responsibility is to ensure that the Services, Equipment and Spare Parts meet the requirements set out in the Technical Specifications during the test(s) at Supplier’s or its subcontractor's factory. Any additional safety and/or environmental devices required for the use and/or operation of the Equipment or Spare Parts must be compatible with the Equipment and Spare Parts and shall be provided by and at the exclusive responsibility of the Buyer.
15.4 The Buyer is responsible for ensuring that any persons using the Vessel, the Equipment and Spare Parts are aware of all the necessary safety instructions and that these are followed at all times.
15.5 The Buyer warrants that the Supplier, its personnel and subcontractors will have full and safe access to the site, the Vessel or premises in respect of which or where Equipment or Services are supplied and that Supplier’s personnel or any equipment of the Supplier or its subcontractors are not subjected to any risks to life, health or risk of loss or damage to property. The Buyer indemnifies the Supplier in respect of any liabilities and/or losses incurred in connection with any person, for or to whom the Supplier is responsible in any way whatsoever, suffering death or injury or loss of or damage to their equipment or other property as a result of the Buyer’s breach of this warranty.
16. FORCE MAJEURE
16.1 Neither Party shall be considered to be in default or otherwise liable for any delay or default in the performance of the Contract, where this is caused by an event or circumstances constituting Force Majeure. Force Majeure means any unforeseeable events or circumstances which are beyond the reasonable control of the Party affected, and includes, without limitation, the following: wars whether declared or not, any events involving ammunitions of war, civil wars and riots, hostilities, public disorder, acts of terrorism and threat of terrorism, any measures taken by public authorities in connection with the threat of terrorism, strikes, lockouts or other industrial disputes, epidemics, fires, explosions, acts of God, embargos, any lawful or unlawful restrictions and actions of any public authority or government, abnormally adverse weather conditions, lightning strikes, flooding, natural disasters, destruction of machines, equipment or factories, or failure of a subcontractor due to reasons stated above to supply materials, goods or services in time or at all and shortage of transport, undue transportation or customs clearance problems or transportation or customs clearance problems arising out of the withdrawal of the United Kingdom from the European Union or any preparatory measures therefor (“Brexit”).
16.2 Once a Party is aware that its performance under the Contract is affected by Force Majeure, the affected Party shall, without undue delay, give written notice to the other Party briefly setting out relevant details of the delay.
16.3 In the event that such Force Majeure event continues uninterrupted for six (6) months after receipt of any notice in accordance with Clause 16.2 above, either Party may terminate the Contract by giving one month written notice.
16.4 Any termination as a result of Force Majeure shall not affect obligations and respective consideration due which have already been performed or provided at the time when the termination notice is given, nor does it affect the Supplier’s right to receive payment of any amounts due under the Contract or in respect of obligations already performed.
17.1 The Buyer may terminate the Contract by giving seven (7) days termination notice in writing to the Supplier if the Supplier is declared insolvent by way of final court order, and the Supplier or any administrator fails to provide, within one (1) month of the Buyer’s written request to do so, adequate security for the performance of its obligations under the Contract.
17.2 In case of a termination of the Contract by the Buyer in accordance with Clause 17.1 the Supplier is entitled to receive payment of the proportional Contract Price in respect of the Supply delivered and supplies already made under the Contract. The Buyer’s right to damages resulting from any termination in accordance with Clause 17.1 shall always be subject to the limitations of liability as set out in Clause 13 and shall under no circumstances exceed fifteen percent (15 %) of the Contract Price.
17.3 The Supplier may terminate the Contract with immediate effect by giving notice in writing to the Buyer in any of the following cases:
a) The Buyer fails to provide or extend the validity of security in accordance with the Contract and such failure is not remedied within fourteen (14) days after the Supplier has given notice in writing.
b) The Buyer fails to pay any amounts due to the Supplier pursuant to the Contract and such failure is not rectified within fourteen (14) days after the Supplier has submitted a written notice.
c) The Buyer has failed to perform a material obligation under the Contract and such material breach of contract has not been rectified within one (1) month after the Supplier has given notice in writing.
d) Any application to commence insolvency or winding up proceedings against the Buyer or its assets is filed.
e) The Buyer has failed to accept the Delivery of the Equipment within the final reasonable time period given by the Supplier in accordance with Clause 6.3 above.
17.4 On termination by the Supplier pursuant to Clause 17.3, the Supplier is entitled to payment and compensation in respect of all losses, costs, expenses and liabilities arising as a result of or in connection with the event giving rise to the termination, including, but not limited to, payment for the Supply and Services supplied and any losses or liabilities resulting from early termination of subcontracts and payments made to its subcontractors and suppliers, and is additionally entitled to payment of a termination fee of eight percent (8%) of the Contract Price. Supplier shall not be obliged to return any payments made by the Buyer.
18. SUSPENSION OF PERFORMANCE
Without prejudice to any other rights or remedies available, the Supplier has the right to suspend performance of its obligations under the Contract in case of any default by the Buyer in the payment of any amounts due, including a delay in providing payment security, or other breach of the Contract, or if any information or documentation requested by the Supplier which relates in any way to the performance of the Contract has not been provided by the Buyer or any third party as agreed or at all. The Supplier has an equal right for suspension if it is reasonably clear from the circumstances that the Buyer will not be able to perform its obligations. In case of such suspension the Supplier shall forthwith notify the Buyer thereof and any time limits or dates for performance in the Contract shall, at the discretion of the Supplier, be extended by a period equal to or longer than the period of default.
19. INVALIDITY OF INDIVIDUAL PROVISIONS
The terms of the Contract are severable. If any provision contained in the Contract is held to be illegal, invalid, void or unenforceable, in whole or in part, the validity of the remaining provisions contained in the Contract shall not be affected thereby. The Parties shall replace or amend any invalid provision or part thereof with a legally acceptable alternative that meets or most closely meets the original intention of the Parties.
20. MISCELLANEOUS PROVISIONS
20.1 The provisions of the Contract are intended for the sole benefit of the Supplier and the Buyer and there are no third-party beneficiaries.
20.2 Each Party must obtain comprehensive insurance covering its personnel, assets and liabilities.
20.3 The waiver of any breach or failure to enforce any of the terms, covenants or conditions of the Contract does not in any way affect, limit, modify or waive the future enforcement of such terms, covenants or conditions.
20.4 Any modifications, documentation or approvals relating to the Supply or Services supplied under the Contract which are required by changes in law, international regulations, flag state, or class rules after the date of the Supplier’s offer shall be the responsibility of and arranged and paid for exclusively by the Buyer.
21. CONFIDENTIALITY AND PUBLICITY
21.1 The Contract or documentation supplied in its context may contain confidential and commercially sensitive information. No Party, nor their agents or subcontractors, may allow any document or information relating to the subject matter, the technical specifications, description of the scope of supplies, negotiations leading to and the conclusion of the Contract, or any other information that may be commercially sensitive, including information that could affect stock market notations, to be disseminated or otherwise published or used, except as provided below, without the express prior consent in writing from the other Party.
21.2 Wärtsilä Corporation, Supplier and the Buyer are entitled to issue public or other announcements or statements which they regard as necessary under the rules of any stock market or other statutory provisions. Supplier is entitled to use information relating to the Supply, Services and/or Vessel for the purpose of providing references for third parties.
21.3 Any press or public statements other than those referred to above, are either issued jointly or, if issued by only one Party, are to be approved in writing by the other Party before being published.
22. DATA AND SECURITY
22.1 Notwithstanding anything to the contrary, companies belonging to Wärtsilä Group shall have the right to collect data from sensors, instruments, monitors, data collectors, industrial control or SCADA devices located at Buyer’s sites or on the equipment delivered and use such data, including but not limited, to support and develop its products, solutions and services. Data may be transferred within Wärtsilä Group and to third parties who act for or on its behalf for processing the data. Companies belonging to Wärtsilä Group shall own any enrichment, report or derivative work developed or derived from such data. The rights granted hereunder shall survive any termination or expiration of the Contract.
22.2 Supplier delivers the Equipment and Software free of any virus and malware detectable by the then current standard industry best practices. Unless otherwise agreed, upon delivery of any equipment provided by the Supplier, the Buyer shall be solely responsible for system integrations and/or system security engineering for any equipment not provided by the Supplier. It is the Buyer’s sole responsibility to protect the equipment and its logic-bearing system components (e.g. hardware, firmware, and software hereinafter referred to as the “Critical Components”) from any External Cybersecurity Threat or Internal Cybersecurity Threat, including against hardware and software vulnerabilities. In recognition of the foregoing, the Buyer agrees and covenants that it shall use the degree of care appropriate to prevent unauthorized access, use, or hacking of the Critical Components provided in connection with any equipment provided by the Supplier and shall do so in a manner that is no less rigorous than any recommendations provided by the Supplier and accepted industry practices.
23. ENTIRE AGREEMENT AND AMENDMENTS
23.1 This Contract is the entire agreement between the Parties. There are no other or prior oral and written agreements, obligations, representations and warranties and correspondence with respect to the subject matter of the Contract upon which the parties have relied except those contained in the Contract.
23.2 The Contract may be amended or varied only if such amendment or variation has expressly been agreed in writing by the authorised representatives of the Parties.
24. TIME BAR
24.1 Subject to Clause 24.2 below, any claims against the Supplier under or in connection with the Contract, will be deemed to be waived and absolutely time barred upon the expiry of twelve (12) months from the date of Delivery.
24.2 Any claims against the Supplier arising out of or in connection with the warranty set out in Clause 12, will be deemed to be waived and absolutely time barred one (1) month after the expiry of the Warranty Period in accordance with Clause 12 for the Supply or the Services, or any part thereof.
25. APPLICABLE LAW, ARBITRATION AND JURISDICTION
25.1 The Contract shall be construed in accordance with, governed by, and interpreted under the laws of Finland.
25.2 All disputes arising out of or in connection with the Contract shall be settled through friendly consultations between the Parties. In case no agreement can be reached through consultations, the dispute shall be submitted exclusively to arbitration for final settlement in accordance with the Rules of Arbitration of the International Chamber of Commerce with three arbitrators appointed in accordance with the said rules. The arbitration proceedings shall be conducted in English. The place of arbitration shall be Helsinki, Finland.
25.3 Nothing contained in this Clause 25 precludes the Supplier from bringing any legal suit, action or proceedings against the Buyer in the courts of any jurisdiction where the Buyer or any of its property or assets may be found or located, and the Buyer hereby irrevocably submits to the jurisdiction of any such court.
Wärtsilä JOVYATLAS EUROATLAS GmbH, Fennenweg 4, 26844 Jemgum, Germany
+49 4958 9394 0, www.jovyatlas.com