T+31 (0)85 00 21 810 E info@shipmotiongroup.com

Contact us

T +31 (0)85 00 21 810

Call me

GENERAL TERMS AND CONDITIONS

Ship Motion Design B.V.

Ship Motion Consultancy B.V.

Ship Motion Products B.V.  

Ship Motion Services B.V.

 

Toermalijnring 1210, 3316 LC, Dordrecht ZH - The Netherlands

 

Table of contents

1. Definitions

2. Applicability  

2.1 General Terms and Conditions

2.2 Third parties and beneficiaries

3. Responsibilities and obligations of the Customer

3.1 Warranty

3.2 Technical, Safety and Storage Assistance

3.3 Documentation

3.4 Intellectual property rights

3.5. Breach of warranty

4. Terms of Performance

4.1 Place of Performance

4.2 Time(s) and periods of Performance

4.3 Delay in Performance

4.4 Special provisions for Delivery of Goods

4.5 Special provisions for completion of Services

4.6 Special provisions for completion of Drawings and Designs

5. Rights of retention

5.1 Rights of retention

6. Warranties

6.1 General provisions

6.2 Special provisions for warranty for Goods delivered

6.3 Special provisions for warranty for provided Services and Designs and Drawings

6.4 Special provisions for warranty for infringements of intellectual property rights

6.5 Special guarantee provisions

7. Liability

7.1 Liability and warranties

7.2 Maximum amount of liability

7.3 Exclusion of liability and indemnification

8. Payment Terms

8.1 Invoices

8.2 Financial security

9. Suspension and Termination of Agreement

9.1 General provisions

9.2 Force Majeur

10. Applicable Law and Jurisdiction

10.1 Law

10.2 Jurisdiction

 

1. Definitions

"Acceptance Protocol" means the document issued by the Supplier and (to be) duly signed for approval and acceptance by the Customer. The Acceptance Protocol constitute evidence that the Goods have been received by the Customer and/or the Services provided by the Supplier to the Customer have been found to be in accordance with the Agreement by the Customer.

"Agreement" means the written contract including eventual appendices between the Supplier and the Customer or the acknowledgement of order sent by the Supplier to the Customer. The Agreement always includes the General Terms and Conditions which are always applicable to the Agreement.   

“Claim” means any claim or proceeding of any nature whether in contract, tort, breach of statutory duty or otherwise and including, but not limited to, a claim for negligence.

"Contract Price" means the price to be paid by the Customer to the Supplier for the Delivery of Goods and/or the providing of Services as determined in the Agreement.

"Customer" means the legal entity with whom the Supplier enters or entered into an Agreement.

"Delivery" means the actual delivery of the Goods in a place designated and determined in the Agreement and in conformity with the General Terms and Conditions.

“Drawings and Designs” means all drawings, designs, plans, suggestions and advise including drafts (to be) made up by the Supplier by order of the Customer.

“General Terms and Conditions” means the terms as set out in this document.

"Goods" means the goods and/or products the Supplier has undertaken to produce and/or amend and/or supply to the Customer as an obligation under the Agreement between the Supplier and the Customer.

“Losses” means any losses, Claims, liabilities, damages, costs or expenses in any way relating to or arising out of the Agreement.  

"Performance" means the providing of Services and/or providing of Drawings and Designs and/or the production and/or amendment and/or supply of Goods by the Supplier to the Customer as determined in the Agreement.

"Personnel" means all personnel employed by the Supplier.

"Services" means jobbing, engineering, installation, commissioning, technical assistance, inspection, advice, repair, overhaul and/or maintenance which the Supplier has undertaken to provide as determined in the Agreement.   

“Supplier" means one or more of the Ship Motion companies as stated in the concerned Agreement between one or more of the Ship Motion companies and the Customer.

2. Applicability

2.1 General Terms and Conditions

2.1.1 The General Terms and Conditions are applicable to all legal relationships between the Customer and Supplier.

2.1.2 Any other terms and conditions are explicitly rejected. In case the Customer or any other legal entity declares other terms and conditions –other than the General Terms and Conditions - applicable in whatever way, it is determined, that the applicability of those other terms and conditions is explicitly denied and rejected and that only the General Terms and Conditions apply.

2.1.3 Amendments to the General Terms and Conditions must be confirmed explicitly and in writing mutually between the Customer and the Supplier.

2.1.4 The Agreement constitutes the whole agreement between the Customer and Supplier. The Agreement supersedes any previous agreement, proposal, understanding or communication, written or oral, relating to its subject matter. No variation to the Agreement shall be effective unless it is documented in writing and duly signed for acceptance by the Customer and Supplier.

2.1.5 The General Terms and Conditions provide special provisions for particular Performances. In case of Agreements regarding one or more particular Performances the special provisions for these Performances take precedence over the general provisions. It is explicitly stated that special provisions which do not regard a particular Performance are not applicable to that particular Performance.

2.2 Third parties and beneficiaries

2.2.1 The Supplier is entitled to subcontract or assign any part of its rights and obligations under the Agreement to a third party.

2.2.2 If the Customer and the beneficiary of the Services provided or Goods delivered by the Supplier are separate legal entities – including, without limitation, natural persons – the Customer warrants and represents that the (other) party or parties having an interest in the Services or Goods accept the General Terms & Conditions fully, failing which the Customer shall indemnify and hold Supplier harmless from and against all Losses connected with the breach of such warranty or representation.

3. Responsibilities and obligations of the Customer

3.1 Warranty

3.1.1 The Customer warrants that the Supplier will be enabled to commence and effect - without interruption or hindrance - Performance immediately upon arrival of Personnel at the designated place of Performance. For this purpose, the Customer shall make all the arrangements necessary - whether or not expressly agreed upon - to ensure that the Performance can commence at the agreed time and date and can be carried out without interruption or hindrance.

3.2 Technical, Safety and Storage Assistance

3.2.1 The Customer shall take care of all measures prescribed by the law of the Netherlands and consequent regulations and decrees for the prevention of accidents at the designated place of Performance. The Customer shall at least seven (7) days before commencement of any Performance confirm to the Supplier in writing that valid safety precautions are taken and shall ensure that the personnel responsible for safety matters at the designated place of Performance 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.

3.2.2 The Customer shall, at no charge, provide the Supplier with all assistance the Supplier reasonably requires, such as - but not limited to - skilled and unskilled personnel (including operating staff), the necessary devices, implements and auxiliary means, hoisting gear of sufficient capacity, 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 as determined in the Agreement. The Customer warrants that the equipment made available by him are safe and in perfect condition.

3.2.3 The Customer shall at all times bear responsibility for the storage of all Goods delivered by the Supplier, in a dry, closed, lockable and safe storage place on the designated place of Performance or in its near vicinity. Prior to the commencement of Performance, these Goods 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.

3.3 Documentation

3.3.1 The Customer warrants that all documents and licenses required for the safe and legal import and export of the Goods and/or the safe and legal stay of Supplier's Personnel at the designated place of Performance shall be available at the designated place of Performance at the time of arrival of the Goods and/or Personnel at the designated place of Performance.

3.3.2 The Customer shall, at no charge, provide the Supplier timely but at least seven (7) days before the commencement of the Performance with any information required with regard to the Agreement, such as - but not limited to - relevant technical documentation, logs, inspection reports and import licenses.

3.3.3 The Customer shall keep any information received from the Supplier strictly confidential, and shall use such information solely for the proper performance under the Agreement. All information provided by the Supplier shall be returned by the Customer to the Supplier on the Supplier's first request.

3.4 Intellectual property rights

3.4.1 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") of the Supplier, used or created during the Performance will at all times remain vested in and the property of the Supplier. All I.P-rights of the Supplier will be returned by the Customer to the Supplier upon first request by the Supplier.  

3.4.2 All IP-rights produced or developed by or on behalf of the Customer with regard to the Agreement and the Performance thereunder, are hereby transferred and assigned to the Supplier which transfer and assignment the Supplier hereby accepts. The Customer hereby transfers in advance all future IP-rights with regard to the Agreement and the Performance thereunder ("Future IP-rights") to the Supplier, which transfer is hereby accepted by the Supplier. The Customer shall at first request of the Supplier perform any act required by the applicable law to conclude full transfer of the IP-rights and Future IP-rights to the Supplier, including but not limited to signing additional documents. 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 and Future IP-rights.

3.4.3 Any deviation from articles 3.4.1 and 3.4.2 of the General Terms and Conditions are only valid when agreed by the Customer and Supplier in writing and duly signed for acceptance by the Customer and Supplier. Notwithstanding this right of deviation, any transfer of (future) IP-rights or any part thereof from the Supplier to the Customer will only be executed after full and final payment by the Customer to the Supplier of the executed work under the Agreement.

3.5. Breach of warranty

3.5.1 In case the Customer does not comply to the obligations and warranties as determined in article 3 (3.1 – 3.2 – 3.3 – 3.4 in total) of the General Terms and Conditions the Supplier has the right to claim any Losses from the Customer as a direct or indirect result thereof. 

4. Terms of Performance

4.1 Place of Performance

4.1.1 The place of Performance shall be determined by the Customer and Supplier and be confirmed in the Agreement. In case the Agreement does not specify a place of Performance, the Supplier shall at its own discretion determine the place of Performance. In that case the Supplier will inform the Customer of the designated place of Performance as soon as the place of Performance is determined.

4.2 Time(s) and periods of Performance

4.2.1 Time(s) or periods of Performance shall be determined by the Customer and Supplier and be confirmed in the Agreement. Any deviation of the time(s) or periods of Performance confirmed in the Agreement is to be agreed upon by the Customer and Supplier in writing and duly signed for acceptance by both Customer and Supplier. Performance will only be commenced after the Customer has met all contractual obligations under the Agreement as required by the Supplier as a precondition to the Performance, including but not limited to payment of amounts due and putting up desired financial security.  

4.2.2 In case the Agreement does not specify the time(s) and periods of Performance, such time(s) and periods shall be determined by the Supplier at its own discretion. In that case the Supplier will inform the Customer of the determined time(s) and periods as soon as the time(s) and periods are determined.

4.3 Delay in Performance

4.3.1 In case Performance is delayed due to (i) any act or omission of the Customer or (ii) the Customer failing to meet the obligations mentioned in article 3 (article 3.1 – 3.2 – 3.3 – 3.4) of the General Terms and Conditions, the Supplier is entitled to extend the time of Performance with a reasonable period which is at least equal to the period of time of such delay. 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 payments due as stipulated in the Agreement, or (ii) the Customer has not put up financial security as required in the Agreement.

4.3.2 All additional costs, including but not limited to costs for legal assistance, which are a direct or indirect result of any delay attributable to the Customer or the beneficiary of the Performance and described under article 4.3.1 General Terms and Conditions shall be borne by the Customer. The Customer is obliged to indemnify the Supplier for any of such costs.

4.3.3 In case the Supplier fails to complete the Performance within the determined period of time, due to reasons attributable only to the Supplier, a grace period of two weeks shall apply. 

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 such Force Majeure. Cases of Force Majeure are in particular - but not limited to - fire, war, terrorist- or warlike acts, riots, insurrection, mobilization, 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, import and export of Goods, tools and/or materials, etc.

4.3.5 The Supplier is - under no circumstances whatsoever - liable or accountable or held to pay for consequential damages of the Customer as a result of delay in Performance. 

4.4 Special provisions for Delivery of Goods

4.4.1 The Customer has no right to reject or refuse the 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 notification by the Customer of the minor defects of the Goods. The Customer is obliged to notify the Supplier of the minor defects immediately and ultimately within 48 (forty eight) hours after the delivery of the Goods.

4.4.2 All Goods are delivered excluding packaging Ex Works Suppliers premises, unless expressly otherwise agreed upon in writing between the Customer and the Supplier.

4.4.3 In the event that the Goods cannot be taken in receipt or immediate dispatch is not possible and therefore delayed at the designated place of Delivery for reasons beyond Supplier's control, the Supplier shall be entitled to store the Goods at the expense of the Customer in a warehouse of Supplier's choice. The Goods shall be deemed as delivered to the designated place once the Goods are stored and any risks regarding the Goods are deemed to be transferred to the Customer accordingly.

4.4.4 Unless otherwise agreed upon, the Supplier is permitted to deliver the Goods in partial shipments. Each shipment may be invoiced separately. The Customer is obliged to pay each separate invoice as part of the total Contract Price.

4.5 Special provisions for completion of Services

4.5.1 Upon the completion of services the Supplier notifies the Customer in writing and invites the Customer to inspect the provided Services. Performance is deemed to be completed when:

4.5.2 The risk for the Goods or materials on which the Services were provided, is transferred to the Customer at the moment the Supplier notifies the Customer in writing of the completion of the Services and invites the Customer to inspect the provided Services.

4.5.3 In case a (sea) trial is agreed upon and confirmed in the Agreement between the Customer and the Supplier, the risk for the Goods or materials on which the Services were provided are transferred to the Customer upon the completion of the (sea) trial.

4.5.4 In case the provision of Services or the (sea) trial is interrupted, stopped or delayed for reasons beyond Supplier's control, the risk for the Goods or materials on which the Services are provided shall be transferred to the Customer during the period of interruption, stoppage or delay.

4.6 Special provisions for completion of Drawings and Designs

4.6.1 The Performance regarding Drawings and Designs is completed as soon as the final Drawings and Designs are send or handed over to the Customer or beneficiary of the Performance.   

5. Rights of retention

5.1 Rights of retention

5.1.1 All Goods delivered by the Supplier shall remain Supplier's property until the Customer has fulfilled all its obligations under the Agreement(s) including previous Agreements between the Customer and Supplier, regardless under which Agreement the Goods were or are delivered.   

5.1.2  Until the moment property has been transferred to the Customer in accordance with the previous paragraph, the Customer shall take no actions (like processing or 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 jeopardize the unfettered execution of Supplier's property rights. Furthermore, the Customer shall take all actions reasonably required in order to protect these rights of the Supplier, and shall immediately return the Goods to the Supplier at first request of the Supplier.

5.1.3 In case the Customer or the beneficiary of the Goods does not fully comply to the obligations of article 5.1.2 resulting in Losses for the Supplier, the Customer is  immediately obliged to pay a fine to the Supplier of EUR 10,000.00 (in words: ten thousand Euros) per breach of an obligation concerned and of EUR 2,500.00 (in words: two and half thousand Euros) for each day any breach of an obligation lasts, without prejudice to the right of the Supplier to claim full compensation for Losses suffered.

6. Warranties

6.1 General provisions

6.1.1 Any warranty to be provided by the Supplier is strictly limited to the term of warranty agreed upon and confirmed in writing between the Supplier and Customer. The Supplier – to its own discretion – is to decide whether to repair or replace (at any place whatsoever) and during normal working hours, defects due to poor workmanship, use of defective materials or defective design, provided that these defects have been reported to the Supplier in writing during the warranty period, within 3 (three) days from the moment the Customer became known or could reasonably have become known of above mentioned defects.

6.1.2 The Supplier has the right to instruct a third party expert or surveyor to investigate the (assumed) defects. The Customer and/or the beneficiary of the Performance is obliged to enable the third party expert or surveyor to make the investigations. Failing this obligation will result immediately in a loss of all rights regarding the provided warranties.

6.1.3 Defective parts which have been replaced shall be made available to the Supplier upon first request and is deemed to be property of the Supplier from the moment the defective parts are replaced.

6.1.4  Warranties provided by the Supplier do under no circumstances cover any defects caused by or related to: (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 any alterations carried out without Supplier's prior written consent. Warranties provided do under no circumstances cover any defects caused by or related to (i) normal wear and tear, (ii) the use of unsuitable materials by the Customer (iii) 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.

6.1.5 The warranty obligation does under no circumstances include consequential damages, including - but not limited to - carnage, electricity, scaffolding, assisting work, docking, demounting, mounting and travel- and boarding costs of Supplier's Personnel. In case the warranty obligation is to be carried out at a location outside The Netherlands, the Supplier shall only bear those costs as would be incurred in case the warranty obligation was to be carried out in The Netherlands. The Customer is obliged to pay all the costs exceeding these regular costs. Furthermore the Customer is obliged to pay the costs for traveling, traveling time, waiting time, day and night allowances, tariff expenses as well as the costs that are to be borne by the Supplier according to the articles of these General Terms and Conditions.

6.1.6 No warranty obligation of the Supplier is enforceable either judicially or extra  by the Customer or beneficiary of the provided Services or delivered Goods until the Supplier has received full and final payment of the Contract Price.

6.2 Special provisions for warranty for Goods delivered

6.2.1 The warranty period ends 24 (twenty-four) months after the date on which the Goods are delivered in conformity of article 4.4 of the General Terms and Conditions. 

6.2.2 The Supplier does under no circumstances provide a new or additional warranty for Goods repaired or replaced according to article 6.1 of the General Terms and Conditions.  

6.2.3 The warranty or warranties provided by the Supplier do under no circumstances apply to any other goods than the Goods produced, supplied and/or installed by the Supplier.

6.3 Special provisions for warranty for provided Services and Designs and Drawings

6.3.1 The Supplier warrants Performance to the best of its abilities. Any additional warranty with respect thereto is explicitly excluded.

6.3.2 All Claims made by the Customer against the Supplier are governed by article 7 of the General Terms and Conditions.

6.4 Special provisions for warranty for infringements of intellectual property rights

6.4.1 In case the Goods delivered and/or Services provided infringe any third party's intellectual property rights, Supplier's only obligation is – to its own discretion - to either procure the right for the Customer to continue to use the Goods, or to alter the Goods to make them non-infringing.

6.5 Special guarantee provisions

6.5.1 Notwithstanding the provisions of article 6.1 – 6.2 – 6.3 and 6.4 in total, Supplier renders a guarantee for all Performance provided for a period of six months counting from the date of delivery and/or completion of Services provided.

6.5.2 Supplier guarantees the quality and sustainability as stated in the Agreement concerned of all Performance and will indemnify the Customer and/or the Beneficiary of the Performance for all damages suffered as a direct result of faulty design, latent defects and failure to launch the vessel in case the Supplier is responsible for the launch.

6.5.3  It is explicitly stated that the guarantee does not under any circumstances exceed the limitations of liability as stated in article 7 of the General Terms and Conditions.

7. Liability

7.1 Liability and warranties

7.1.1 Supplier's contractual and non-contractual liability do under no circumstances exceed any of the warranty obligations of Supplier as mentioned in article 6 of the General Terms and Conditions.

7.2 Maximum amount of liability

7.2.1 Supplier's contractual and non-contractual liability is strictly limited to the maximum of (i) the amount of the Contract Price of the Agreement to which the   assumed liability is related to, or (ii) the maximum insured sum for the assumed liability concerned under Supplier's liability insurance policy, whichever is less.

7.3 Exclusion of liability and indemnification

7.3.1 The Supplier shall in no event be liable for any financial losses and/or consequential damages suffered by the Customer or any other third party who has or has had any interest in the Agreement, including - but not limited to environmental pollution, docking costs and mounting and demounting costs.

7.3.2 Any alteration of law and/or decrees and/or regulations, etc. either by Governments or Classification Societies after conclusion of the Agreement, does under no circumstances provide a ground for the contractual and non-contractual liability of the Supplier.

7.3.3 The Customer or the beneficiary of the Performance shall indemnify the Supplier against any Claims or Losses in relation to Claims of any third party against the Supplier in relation to the Agreement.

8. Payment Terms

8.1 Invoices

8.1.1 Unless explicitly otherwise determined in the Agreement, payment of the Contract Price is to be made in the following terms. The first 50% of the Contract Price is to be paid before the start of the execution of the Performance. Supplier will issue an invoice for the first 50% of the Contract Price, to be paid within 10 (ten) days after the date of invoice and without any deductions, compensation for debts, banking costs or withholding of any nature. Supplier has the right to suspend all activities regarding the Agreement until payment is received. The second 50% of the Contract Price is to be paid after the completion of the Performance. Supplier will issue an invoice for the second 50% of the Contract Price, to be paid within 30 (thirty) days after the date of invoice and without any deductions, compensation for debts, banking costs or withholding of any nature. 

8.1.2 Any objections of whatever kind to the invoiced amount(s) are to be submitted to the Supplier in writing within 10 (ten) days after the invoice date, failing which the invoiced amount(s) shall be deemed to be accepted by the Customer.

8.1.3 In case the invoices are not paid within the set period of time, compound interest becomes due immediately in the amount of 1.5 % per month or part of a month. The Customer is obliged to pay all judicial and extrajudicial costs related to collection of the amounts due by the Supplier. 

8.2 Financial security

8.2.1 Upon Supplier’s first request the Customer is to put up sufficient financial security by a first class bank or a legal entity to be approved of by Supplier for the total Contract Price. In case this request is not met the Supplier – to its own discretion - has the right to (i) suspend all activities regarding the Agreement or to (ii) wholly or partially terminate the Agreement by a written notification to the Customer. The Customer will indemnify the Supplier for Losses suffered by the Supplier as a result of not meeting this request.

9. Suspension and Termination of Agreement

9.1 General provisions

9.1.1 The provisions under article 9 apply to every Agreement without prejudice of any other provision in the General Terms and Conditions regarding suspension of any activity regarding the Agreement or the termination wholly or partially of the Agreement.

9.1.2 The Supplier has the right to either suspend Performance or to terminate the Agreement wholly or partially in case (i) the Customer does not meet any of the obligations mentioned in these General Terms and Conditions, or (ii) the Supplier has reasons to believe that the Customer is not able to meet these obligations.

9.2 Force Majeur

9.2.1 After the period of Force Majeure has continued without interruption for a period of 6 (six) months, both Supplier and Customer have the right to terminate the Agreement by written notification to one another.

10. Applicable Law and Jurisdiction

10.1 Law

10.1.1 The law of The Netherlands applies to each Agreement.

10.1.2 In case parts of the General Terms and Conditions or the Agreement itself are or has become unenforceable or lose their validity due to whatever reason, the other terms of the General Terms and Conditions and the Agreement remain unaffected.

10.2 Jurisdiction

10.2.1 The Court of Rotterdam (location Rotterdam) has in first instance and in injunction proceedings exclusive jurisdiction regarding all disputes arising from an Agreement.