General terms
HME Conditions, version June 2002 1
GENERAL TERMS AND CONDITIONS OF CONTRACT
of HOLLAND MARINE EQUIPMENT ASSOCIATION (HME)
Filed with the Clerk of Rotterdam District Court on May 31st 2002, file number 71/2002
Published by Holland Marine Equipment Association, P.O. Box 24074, 3007 DB Rotterdam.
1. Definitions
In these General Terms and Conditions of Contract (hereinafter
referred to as the “Terms and Conditions”), the following terms shall
have the following meaning:
– “Supplier”: any supplier of Goods and/or Services under an
Agreement;
– “Customer”: the party with whom the Supplier entered into
an Agreement;
– “Agreement”: the specific written sales and/or service
contract or acknowledgement of order, with appendices,
between the Supplier and the Customer, including these
Terms and Conditions, which form an integral part thereof;
– “Services”: any services like jobbing, erection, installation,
commissioning, technical assistance, inspection, advice,
repair, overhaul and/or maintenance that the Supplier has
undertaken to provide, whether or not subsidiary to Delivery
of Goods and regardless of their appellation;
– “Goods”: any goods the Supplier has undertaken to
supply, including software and/or hardware, spare parts,
certificates and/or documentation required for proper
Performance;
– “Acceptance Protocol”: the document to be issued and
signed by both parties, which shall constitute evidence that
the Goods delivered and /or Services provided have been
found to be in accordance with an Agreement;
– “Delivery”: the delivery of the Goods, as agreed between the
parties in accordance with the Agreement;
– “Performance”: the provision of Services and/or the supply
of Goods by the Supplier;
– “Contract Price”: the price to be paid to the Supplier in
connection with the Delivery of Goods and/or provision of
Services under the Agreement.
– “Personnel”: all personnel either directly or indirectly
employed or hired by the Supplier, including representatives
of the Supplier
2. General
2.1 These Terms and the Agreement can be amended and
supplemented only if such amendment or supplement has
expressly been agreed upon as such in writing.
2.2 The Agreement replaces all prior oral and written
agreements with respect to the subject matter of the
Agreement.
2.3 Supplier’s offers are without engagement.
2.4 The Agreement is conditional on obtaining of all relevant
export licences.
2.5 The Supplier shall be entitled to subcontract or assign any
part of its rights and obligations out of the Agreement.
3. Obligations of the Customer
The Customer warrants that the Supplier will be enabled to
commence and effect Performance outside Supplier’s works
immediately upon arrival of Supplier’s Goods or Personnel and
without interruption or hindrance. For this purpose, the Customer
shall, before the arrival of Supplier’s Goods or Personnel, make
all the arrangements necessary -whether or not expressly
agreed upon- to ensure that the work can commence at the
agreed date and can be carried out without interruption or
hindrance.
3.1 Technical, Safety and Storage Assistance
3.1.1 In case the Performance takes place at the premises of
the Customer, the Customer shall take all measures
prescribed by law and/or any other reasonable measures
necessary for the prevention of accidents at his premises.
The Customer shall inform the Supplier at least 7 days
before commencement of any work in writing of the valid
safety precautions and shall ensure that his personnel
responsible for safety matters is present during the times
that Performance is to take place. The Supplier is entitled
to refuse or suspend Performance if the safety of his
Personnel is not sufficiently guaranteed.
3.1.2 In addition to article 3.1.1, the Customer shall, at no
charge, provide the Supplier with all assistance the
Supplier reasonably requires, such as -but not limited toskilled
and unskilled personnel, the necessary devices,
implements and auxiliary means, in particular the tools for
the assistant personnel and hoisting gear of sufficient
capacity (including operating staff), scaffolding etc., as
well as cleaning, packing and lubricant materials.
Furthermore, the Customer shall supply heating, lighting,
water and electricity and their connections in sufficient
capacity and quantity as well as welding gas and other
working requirements in so far as these are not to be
provided by the Supplier under the terms of the
Agreement. The equipment made available by the
Customer shall be safe and in perfect condition.
3.1.3 The Customer shall at all times bear responsibility for the
storage of all Goods delivered, including Spare Parts and
other materials, at least in a dry, closed and lockable room
on the site or in its near vicinity, in accordance with normal
practice and/or the instructions issued by the Supplier.
Prior to the commencement of work or installation of these
Goods, they shall be checked by the Customer, in order to
make sure that the Goods are complete and undamaged.
Goods lost or damaged during storage shall be replaced
or repaired at the expense of the Customer.
3.2 Documentation
3.2.1 The Customer warrants that all documents and licences
required in connection with the import and export of the
Goods and/or the stay of Supplier’s Personnel in the
country and at the premises of the Customer shall be
available at the time of arrival of the Goods and/or
Personnel.
3.2.2 The Customer shall, at no charge, provide the Supplier
timely with any information reasonably required in
connection with the Agreement, such as – but not limited
to – relevant technical documentation, logs, inspection
reports and import licences.
3.2.3 The Customer shall keep any information received from
the Supplier strictly confidential, and shall use such
information solely for the proper performance of the
Agreement. All information provided by the Supplier shall
be returned by the Customer to the Supplier on Supplier’s
first request.
3.3 Intellectual property rights
3.3.1 All intellectual property rights, including but not limited to,
all drawings, designs, (technical) documentation, building
specifications, computer programs, as well as the carriers
on which such rights are laid down (hereafter jointly: “I.P.-
rights”), which come to the knowledge of the Customer
during the contract, will at all times remain vested in and
the property of the Supplier and will be returned to the
Supplier upon first request or immediately upon fulfilment
of the contractual obligations of both the Customer and
the Supplier.
3.3.2 All IP-rights produced or developed by or on behalf of the
Customer for or during the Contract, are hereby
transferred and assigned to the Supplier which transfer
and assignment the Supplier hereby accepts. The
Customer shall at first request of the Supplier perform any
act, if any, required by the applicable law to conclude full
transfer of the IP-rights to the Supplier, including signing
additional documents. The Customer hereby transfers in
advance all future IP-rights (“Future IP-rights”) to the
Supplier, which transfer is hereby accepted by the
HME Conditions, version June 2002 2
Supplier to the extent that the law does not permit transfer
in advance of the Future IP-rights, the Customer will, upon
the establishment of any Future IP-rights and at first
request of the Supplier, perform any act required for the
transfer of the Future IP-rights. The Customer hereby
grants the Supplier an irrevocable power of attorney to
perform – in the name of the Customer – all acts
necessary to conclude the transfer pursuant to the
aforementioned IP-rights.
3.3.3 In the event parties decide to deviate from the term and
conditions as laid down in the paragraphs 3.3.1 and 3.3.2,
and agree in writing that the (Future) IP-rights or any part
thereof will be transferred and assigned to the Customer,
the Customer will give the Supplier a perpetual, worldwide,
exclusive, royalty-free and non-transferable licence
for the use, including but not limited to exploitation,
publication and copying, of the (Future) IP-rights or any
part thereof.
4. Terms for Performance
4.1. Place of Performance
The place of Performance shall be stated in the Agreement. In
case the Agreement does not specify a place of Performance,
such place shall be determined by the Supplier at its discretion
after consulting the Customer.
4.2 Times of Performance
4.2.1 Time(s) or periods of Performance shall be stated in the
Agreement. Any time or period of Performance that differs
from the Agreement shall only be binding if they have
been agreed upon by the Supplier in writing. If
Performance is to take place during a specific and fixed
period of time by the expiry of which Performance is
deemed to be completed, any such period will not
commence until all contractual obligations of the Customer
have been met, all payments due have been made,
security desired by the Supplier has been put up and/or
any other preconditions have been fulfilled.
4.2.2 In case the Agreement does not specify the time of
Performance, such time shall be determined by the
Supplier at its discretion after consulting the Customer.
However, as far as the Agreement sees to the provision of
Services, the date of Performance mentioned in the
Agreement shall be an estimate only. The Supplier shall
make every reasonable effort to effect Performance at the
said date.
4.3 Delay in Performance
4.3.1 If Performance is delayed due to (i) any act or omission of
the Customer or (ii) the Customer failing to perform any of
the obligations mentioned in article 3 of these Terms and
Conditions, the Supplier is entitled to extend the time of
Performance with a reasonable period which is at least
equal to the additional period of time caused by such
delay.
Furthermore, it is expressly agreed that the Supplier shall
have the right to extend the time of Performance in the
event that (i) the Supplier has not received the advance
payment (or an other contractual payment) as stipulated in
the Agreement, or (ii) the Customer has not provided
security that complies with the requirements in the
Agreement.
4.3.2 Any additional costs arising from delay which is
attributable to the Customer, shall be borne by the
Customer.
4.3.3 In case the Supplier fails to Perform in time due to
reasons attributable only to the Supplier, a grace period of
two weeks shall apply. Thereafter, the Customer shall be
entitled to claim liquidated damages of 0,5% for each
completed week of delay, calculated on the value of the
delayed Goods. Liquidated damages shall in no case
exceed 5% of the value of the delayed Goods. Liquidated
damages shall only be due if the Customer proves that the
delay caused damage and the amount of the loss suffered
can be substantiated accordingly. Liquidated damages
shall be the Customer’s only remedy for losses incurred
as a result of delay in Performance. Damages other than
the said liquidated damages are explicitly excluded.
4.3.4 In case of any occurrence, either foreseeable or not,
beyond the reasonable control of the Supplier or any of his
sub-Suppliers, which prevents the Supplier from effecting
Performance (“Force Majeure”), the date of Performance
will be extended with at least the period of Force Majeure.
Cases of Force Majeure are in particular -but not limited
to- fire, war or warlike acts, riots, insurrection,
mobilisation, floods, earthquakes and other natural
disasters, epidemics, quarantine measures, strikes,
lockouts, requisitioning, restriction of foreign currency
transfer, transport restrictions, and restrictions in the issue
of permits for the Personnel, importation and exportation
of Goods, tools and/or materials.
4.4 Special provisions for Delivery of Goods
4.4.1 The Customer shall have no right to reject or refuse
Delivery or acceptance of Goods due to minor defects
which do not prevent the normal operation of the Goods,
provided that the Supplier agrees to remedy such defects
after the Delivery of the Goods, in compliance with the
Agreement.
4.4.2 All Goods shall be delivered Ex Works, excluding
packaging, Suppliers premises, The Netherlands, unless
expressly otherwise agreed upon.
4.4.3 In the event that dispatch or collection of the Goods at the
designated place of delivery is delayed for reasons
beyond Supplier’s control, the Supplier shall be entitled to
store the Goods at the expense of the Customer in a
warehouse at Supplier’s choice. Upon storage, Delivery
shall be deemed completed and the risk for the goods
shall transfer to the Customer accordingly.
4.4.4 Unless otherwise agreed upon, the Supplier shall be
permitted to deliver the Goods in partial shipments. Each
shipment may be invoiced separately, in which case the
Customer shall pay the separate invoices as part of the
total Contract Price.
4.4.5 Any alteration of regulations either by Governments or
Classification Societies after the moment on which the
Supplier and the Customer entered into the Agreement,
can never be a ground for liability of the Supplier.
4.5 Special Provisions for the provision of Services
4.5.1 General terms of service and working hours
(1) Performance shall be considered completed when either
– the Supplier has notified the Customer that the provision
of Services has been completed and the Protocol of
Acceptance was signed; or
– eight days have elapsed from the time the Supplier
notified the Customer as above and Customer has
neglected to inspect the Services provided within this time
and/or failed to notify Supplier in writing of its approval or
rejection,
– the Customer commences, without the approval of the
Supplier and during the term of Performance, the use or
the operation of the Goods on which the Services were
provided.
(2) Unless expressly otherwise agreed upon in the
Agreement, Services shall be provided during a working
week which shall be in accordance with normal industry
practice. A working day is deemed to be a manday.
(3) Hours worked outside these normal working hours, on
Sundays or on official holidays will be charged separately
as overtime.
(4) Supplier’s Personnel will be guided, if possible, by the
operational conditions at the Customers premises and by
the climatic conditions of the country.
4.5.2 Additional Obligations of the Customer for the
provision of Services
(1) During Performance, the Supplier is entitled to replace the
Personnel delegated by him by other qualified Personnel.
HME Conditions, version June 2002 3
(2) In case of accidents or illness of Supplier’s Personnel, the
Customer shall provide the necessary (professional)
assistance.
(3) Any waiting time for which the Supplier is not responsible,
will be charged to the Customer as normal working time.
4.5.3 Transfer of risk
(1) In so far as no special agreement is made, the risk of the
accidental destruction or deterioration of the Services as a
whole or of self-contained parts will be transferred to the
Customer at the moment the Supplier notifies the
Customer of the completion of the provision of the
Services. If a trial run or seatrial are agreed upon, the
transfer of risk shall take place upon completion of
successful trial run or seatrial.
(2) Objects and materials made available by the Customer,
will be taken in charge by the Supplier in accordance with
the scope of agreements made for this purpose. The risk
of accidental destruction or deterioration of these objects
and materials shall remain with the Customer; for damage
to these objects and materials for which the Supplier is
responsible, article 7 shall apply.
(3) Should the provision of Services or the trial run or seatrial
be interrupted, stopped or delayed for reasons beyond
Supplier’s control, the risk of accidental destruction or
deterioration of the Services provided shall be transferred
to the Customer during the period of the interruption,
stoppage or delay.
5. Retention of title
5.1 All Goods delivered by the Supplier, shall remain Supplier’
s property until the Customer has fulfilled all its obligations
under this Agreement and under any previous agreement
of similar kind between the Customer and the Supplier.
5.2 Until the moment property has been transferred to the
Customer in accordance with the previous paragraph, the
Customer shall take no actions (like combining the Goods
delivered, either in production or in storage, with other
goods, or transferring, selling or encumbering them in any
respect, or taking them into another country) which could
jeopardise the unfettered execution of Supplier’s property
right. Furthermore, the Customer shall take any actions
reasonably required in order to protect these rights, and
shall immediately return the Goods to the Supplier at first
request.
6. Warranty
6. 1 General
The following paragraphs shall apply to all warranties provided
by the Supplier insofar articles 6.2 and 6.3 do not contain any
differing stipulations applicable to the specific type of warranty.
6.1.1 Any warranty to be provided by the Supplier, shall be
strictly limited to, at its discretion either repair or replace at
its works or at local premises and during normal working
hours, defects due to poor workmanship, use of defective
materials or defective design, provided these defects have
been reported to the Supplier in writing during the
warranty period, within 7 days from the moment the
Customer became known or could reasonably have
become known of the above mentioned defects.
6.1.2. Defective parts which have been replaced shall be made
available to the Supplier upon request and shall be
deemed property of the Supplier from the moment those
parts are exchanged.
6.1.3 The warranty provided does not cover any defect due to or
connected with: (i) any materials or components or design
provided by or on behalf of the Customer, (ii) the
negligence or other improper acts or omissions of the
Customer, its employees or agents or other third parties,
(iii) improper installation and alterations carried out without
Supplier’s prior written consent. In particular, warranty
provided does not cover any defects that are caused by or
connected with normal wear and tear, the use of
unsuitable materials by the Customer or which are caused
by any use, maintenance, service or operation of the
Goods delivered or services provided, which is not in
conformity with Supplier’s manuals, instructions or which
is otherwise not in accordance with good engineering
practice.
6.1.4 The warranty obligation does not include consequential
costs, including -but not limited to- cranage, electricity,
scaffolding, assisting work, docking, demounting,
mounting and travel- and boarding costs of Supplier’s
Personnel. If the warranty obligation has to be carried out
at a location outside The Netherlands, the Supplier bears
only the material costs and the costs of working time
required under normal conditions, as would be incurred
when the warranty obligation would have been carried out
in the Netherlands. The Customer shall bear the costs for
travelling, travelling time, waiting time, day and night
allowances, tariff expenses as well as costs that are to be
borne by the Supplier according to the articles of these
General Terms.
6.1.5 No warranty obligation will be enforceable by the
Customer until the Supplier has received payment of the
Contract Price in full.
6.2 Warranty for Goods delivered
6.2.1 The warranty period ends 12 ( twelve) months after the
date on which
(i) the Goods have been taken into use; or
(ii) a trial run or seatrial has been found successful; or
(iii) the Protocol of Acceptance has been issued;
or 18 (eighteen) months after Delivery of the Goods,
whichever comes first.
6.2.2 No new or additional warranty shall be available for Goods
repaired or replaced according to article 6.1 of these terms
and Conditions.
6.2.3 No warranty shall be available for Goods other than
Goods produced, supplied and/or installed by the
Supplier.
6.3 Warranty for Services Provided
6.4.1 The Supplier warrants Performance to the best of its
abilities. Any additional warranty with respect thereto is
explicitly excluded.
6.4.2 Claims by the Customer for damage to the object(s) upon
which the Services were performed, are governed by
article 7 of these Terms and Conditions.
6.4 Warranty for infringements of intellectual property rights
In case the Goods or Services infringe any third party’s
intellectual property rights, Supplier’s sole obligation shall be to,
at its discretion, either procure the right for the Customer to
continue to use the Goods, or to alter the Goods to make them
non-infringing.
7. Liability
7.1 Supplier’s contractual liability is strictly limited to the
warranty obligations as mentioned in article 6 of these
Terms and Conditions.
7.2 Supplier’s liability shall be strictly limited to (1) the amount
of the Contract Price, calculated at an average use of
manpower and facilities, or (2) the amount which is paid
out under Supplier’s liability insurance policy, which ever
is the lesser.
7.3 The Supplier shall in no event be liable for any economic
losses and/or consequential damage, including -but not
limited to- environmental pollution, docking costs and
mounting and demounting costs.
7.4 The Customer shall indemnify the Supplier against any
costs and damages in connection with claims of any third
party against the Supplier in connection with the
Agreement, in so far the Supplier would not be liable to
the Customer therefor.
8. Payment Terms
8.1 Unless explicitly otherwise agreed upon, payments shall
be made cash on delivery or by payment to a bank
HME Conditions, version June 2002 4
account designated by the Supplier within 30 days of the
date of invoice and without any deductions, compensation
for debts or withholding of any nature.
8.2 Upon reasonable request of the Supplier, the Customer
shall provide sufficient security for the total Contract Price.
If the Customer does not meet any such request of the
Supplier, the Supplier shall have the right to wholly or
partially terminate or suspend the Agreement by a written
notification to the Customer.
8.3 Any objections of whatever kind to invoiced amount shall
be submitted to the Supplier in writing within 14 days of
the date of the invoice, failing which the invoiced amount
shall be deemed to have been accepted by the Customer.
8.4 If the Customer fails to perform any of the above payment
obligations, the Customer shall pay to the Supplier interest
on the amount overdue at 1.5 per cent per month or part
of a month. In addition the Supplier may, after having
notified the Customer in writing, suspend Performance
until payment is received with respect to the Agreement
and/or the above payment terms. All the extra-judicial and
judicial costs of debt collection shall be for the Customer’s
account, whereby a minimum of 15 per cent of the
outstanding amount shall be payable by the Customer.
9. Suspension and Termination of Agreement
In case of Force Majeure, either party’s sole remedy shall be
termination of the Agreement after the period of Force Majeure
has continued without interruption for a period of 6 months.
The Supplier shall be entitled to either suspend Performance or
to terminate the Agreement in case either the Customer does
not meet any of the obligations mentioned in these General
Terms and Conditions of Contract, or the Supplier has reasons
to believe that the Customer shall not be able to meet these
obligations.
10. Applicable Law and Jurisdiction
10.1 This Agreement shall be governed by the laws of the
Netherlands.
10.2 All disputes arising between the parties to this Agreement
shall be settled through friendly consultations between the
Parties.
10.3 In case no agreement can be reached through these
consultations, and the Customer is not a resident of The
Netherlands, the dispute shall be finally settled by
arbitration under the Rules of Arbitration of the
International Chamber of Commerce (ICC), by one or
more arbitrators appointed in accordance with the said
Rules. The arbitral proceedings shall be in the English
language and will take place in the place of residence of
the Supplier, The Netherlands.
10.4 In case no agreement can be reached through these
consultations, and the Customer is a resident of The
Netherlands, the dispute shall be submitted to the
competent Dutch Court.