1.0 Validity of these Terms and Conditions
1.1 An order for delivery of work, i.e. products. materials, services, equipment, tools, personnel, etc., from a company with- in the Ionada group of companies, hereinafter referred to as IONADA, presupposes acceptance by the Buyer of these Terms and Conditions, regardless Of the form in which the order is given. These Terms and Conditions are valid until otherwise notified to the Buyer by IONADA.
1.2 Price lists for service assistance, tools, etc. are subject to special terms and shall be enclosed with and form an integral part of these Terms and Conditions. In case of discrepancy between them, the price lists shall prevail.
1.3 These Terms and Conditions are divided into two main sections:
I GENERAL CONDITIONS, articles 2-8
II TERMS FOR ASSISTANCE BY IONADA’S PERSONNEL, articles 9-15
I GENERAL CONDITIONS
2.1 Standard Payment Terms are 50 % at order and 50% prior to delivery. The invoice for the work will be paid upon receipt by the Buyer.
2.2 Credit Payment Terms may be extended for up to 30 days upon credit approval, at the sole discretion of IONADA, and shall be paid by the Buyer within 30 days of the date of invoice. The invoice for the work will be forwarded as soon as possible after completion of IONADA’s work and shall be paid by the Buyer within 30 days of the date of invoice.
2.3 Work or products delivered by IONADA shall remain the property of IONADA until paid for in full to the extent that the applicable law permits such retention of property.
2.4 If payment is not received on the due date, interest will be charged from that date until payment is affected. Interest shall be added to the invoiced amount on the basis of LIBOR for USD plus 6% per annum.
2.5 If the Buyer wishes to transfer the order to a third party, such transfer requires IONADA’s prior acceptance. In this situation, the Buyer shall remain liable for payment to IONADA.
3.1 If IONADA is delayed in delivery or in the work for reasons caused solely or partly by the Buyer or any of his representatives, employees, officers, subcontractors, or agents, IONADA shall not only be allowed the necessary extra time but also compensation for extra costs that IONADA may incur.
3.2 If IONADA is delayed in delivery or in the work by its own fault, IONADA shall be liable for compensation or liquidated damages only if such written agreement has been stipulated directly in the Contract entered between IONADA and the Buyer. Liability for damages does not include consequential or indirect damages, irrespective Of the nature of such damages. In no event shall the indemnity exceed 7.5% of the contract sum. The Buyer is not entitled to any other remedies and may not cancel the contract due to delays on the part of IONADA.
4.0 Liability against defects
4.1 All agreements shall be made on the basis of the limited liability provisions set forth herein. Other or more extensive liability, including the right to cancel a contract or claim damages beyond the extent stated herein. shall be valid only if a written agreement stating the nature and extent thereof has been entered before acceptance of delivery of the work and if the price is adjusted to include the costs of appropriate additional insurance or additional exposure.
4.2 IONADA’s liability for defects in materials delivered shall be limited to procuring and supplying replacement materials free of charge.
4.3 For repair work and other work, IONADA’s liability for defects shall be limited to repair of the defect in question. IONADA shall cover only the direct costs of labour and materials for such repair. IONADA disclaims any other cost, whether direct, indirect, consequential, or otherwise. Payment for travelling time, waiting time, travelling expenses, hotel, and meals shall be for the account of the Buyer and shall be invoiced accordingly.
4.4 IONADA shall be liable for damage only if caused by gross negligence or intent on the part of IONADA’s personnel. IONADA’s liability shall be limited to repair of the direct damage and shall cover neither consequential costs nor indirect loss, irrespective of the nature of such loss. In no event shall IONADA’s aggregate liability arising out of a contract exceed the total value of the contract or the equivalent amount in local currency. In no event can the amount exceed the amount of the contract, the maximum being 1 million euro. The Buyer agrees to indemnify IONADA with respect to any liability in excess of this amount.
4.5 IONADA shall make its best effort to pass on to the Buyer all manufacturers’ warranties for machinery and equipment procured by IONADA for the work. In no event shall IONADA’s warranties/liability for machinery and equipment procured by IONADA be more extensive than the manufacturer’s warranties.
4.6 Where IONADA has merely supervised the commissioning of the equipment and has not carried out the installation/repair, IONADA shall incur no liability in respect of damage caused by defects in connection with such installation/repair. IONADA shall be liable only for damage directly related to gross negligence or intent on the part of IONADA’s personnel with a view to improper commissioning procedures.
4.7 IONADA assumes no liability for defective materials or workmanship, loss, or damage once the work has been accepted by the representative of the classification society or the Buyer. In no event shall IONADA be liable unless the defective materials or workmanship are detected and presented to IONADA in writing within thirty (30) days of the Buyer’s detecting the defects, or the work has ceased for whatever reason, or products have been returned to IONADA, whichever occurs first.
5.0 Force majeure
5.1 In case IONADA is hindered by an event of force majeure from carrying out the agreed work within the agreed time, then IONADA shall be allowed the necessary extra time from the point in time when the event of force majeure ceases. IONADA shall not be liable for loss, damage, or delay caused by an event of force majeure.
5.2 Force majeure shall be taken to include, but not be limited to acts of God, strikes, lockouts, general disturbance, major traffic disturbance in international transportation, inclement weather conditions, and other circumstances beyond IONADA’s control.
6.0 Product liability
6.1 Unless other statutory provisions apply, the following shall govern IONADA’s product liability:
6.2 IONADA shall be liable for personal injury only if it is proved that such injury was caused by negligence on the part of IONADA or others for whom IONADA was responsible.
6.3 IONADA shall not be liable for damage to property occurring whilst IONADA’s products are
in the Buyer’s possession. Nor shall IONADA be liable for damage to products manufactured by the Buyer or to products or services of which the Buyer’s products form a part.
6.4 In no event shall IONADA be liable for loss of production, loss of profit, or any other consequential damages or indirect loss.
6.5 In no event shall IONADA’s liability exceed 1 million euros.
6.6 To the extent that IONADA incurs product liability to a third party, the Buyer shall indemnify IONADA as far as IONADA’s liability has been limited by the four preceding paragraphs.
6.7 The above limitations in IONADA’s liability shall not apply where IONADA has been guilty of gross misconduct.
6.8 If a claim for damages as described in this clause is lodged by a third party against IONADA or the Buyer, that party shall forthwith inform the other party thereof in writing.
6.9 IONADA and the Buyer shall be obliged to let themselves be summoned to the court or arbitration tribunal that examines claims for damages lodged against one of them on the basis of damage allegedly caused by IONADA’s work or products.
7.1 IONADA disclaims any liability that is not covered by these Terms and Conditions. IONADA specifically disclaims all warranties of merchantability and fitness of IONADA’s work or products for a particular purpose.
8.0 Venue and applicable law
8.1 All deliveries from IONADA shall be subject to CISG. Any dispute between the parties regarding a situation arising out Of or in connection with an agreement governed by these Terms and Conditions shall be subject to the law of the country in which the contracting IONADA company is domiciled without giving effect to the principle of conflict of the laws thereof. Any dispute shall be settled by the commercial court of the country in which the contracting IONADA company is domiciled.
II TERMS FOR ASSISTANCE BY IONADA PERSONNEL
9.0 Working hours — time sheets.
9.1 A normal week comprises 5 working days and 2 weekend days. A normal working day comprises 8 working hours, and hours exceeding 8 working hours shall be considered as overtime hours.
9.2 All working hours on weekend days and IONADA personnel’s national holidays shall be considered as overtime hours.
9.3 IONADA personnel can only undertake working hours exceeding 12 hours per day or work on Sundays against the Buyer’s representative’s written approval. Reasons for overtime hours exceeding 12 hours per day and written approval shall be given on the time sheet.
9.4 The Buyer or his authorized representative is requested to follow the progress of the work closely.
9.5 Time sheets showing the time during which IONADA’s personnel have carried out work for the Buyer shall be filled in daily and shall be countersigned by the chief engineer/ work foreman or any other authorized representative of the Buyer.
9.6 If the Buyer’s representative fails to countersign the time sheets, or if the representative does not approve of the time sheets that have been filled in by IONADA’s personnel, the Buyer’s representative or the Buyer himself shall immediately inform the IONADA company responsible for the job by telex, telefax, E-mail, or telegram of the reason for the refusal. If a time sheet has not been countersigned in accordance with this article, or if the Buyer has not given due notice of the unapproved time sheets to the relevant IONADA company, then IONADA shall be entitled to reject any objections regarding invoices based upon time charged to the Buyer.
9.7 The effective working time is defined as the time from the commencement of work by IONADA’s personnel until they leave the job, less the time spent on meal breaks.
9.8 If IONADA’s personnel are not provided accommodations on board a ship where they are carrying out a job, the working time starts at the time IONADA’s personnel leave their hotel and ends at their return to the hotel.
10.0 Waiting time
10.1 Waiting time caused by lack of work due to circumstances beyond the control of IONADA’s personnel shall be invoiced at the rate valid for normal working hours. IONADA’s personnel are prepared to undertake other kinds of work than originally intended in order to compensate for waiting time.
10.2 Waiting time shall be charged daily between 8 a.m. and 8 p.m. A maximum of 10 hours of waiting time can be charged per day.
11.0 Allowances and travelling and transport expenses
11.1 Travelling, hotel, allowances, and other expenses paid by IONADA, including telephone calls, telefaxes, etc. shall be invoiced to the Buyer at cost plus 15% overhead charges.
11.2 Travelling time shall be invoiced at the rates for normal working hours with max. 12 hours/day.
11.3 Accommodation shall be of a reason able standard.
12.0 Conditions when staying on board a ship, at a building site, or similar
12.1 Accommodation shall be of a reasonable standard. IONADA’s personnel shall have access to shower with hot and cold water.
12.2 IONADA’s personnel shall have purchasing facilities for daily requirements such as food, beverages, etc. IONADA’s personnel shall have access to a refrigerator.
12.3 Payment for beverages etc. bought on board the ship or at the site should preferably be settled with IONADA’s personnel before they leave.
13.0 Permits, licenses, and certificates
13.1 It is the sole responsibility of the Buyer to advise and, whenever necessary, to obtain permissions, permits, passes, licenses, or certificates from the appropriate authorities or classification societies for work to be carried out by IONADA.
14.0 Tools and equipment
14.1 If requested, IONADA shall supply tools and equipment, subject to a separate agreement.
14.2 Rental of tools from an IONADA company shall be charged from the day that the tools leave that company until they are received back at the same company.
14.3 After use, IONADA’s tools shall be packed in IONADA’s tool box(es) under the supervision of the Buyer or his representative. Any shortages, damage, etc. shall be noted and the tool box(es) locked.
14.4 The Buyer shall arrange for transportation of the tool box(es) to their point of origin. The Buyer shall arrange for insurance against loss or damage.
14.5 The tools shall be received by IONADA no later than 90 days after termination of the work. If the tools are not received within this time, they shall be considered lost and shall be charged to the Buyer. Damaged tools shall also be charged to the Buyer.
14.6 upon request IONADA shall supply industrial gases at the Buyer’s expense. If the Buyer does not specifically request IONADA to supply such gases. the Buyer shall be expected to supply them.
14.7 Provided no other arrangements are made, the following supplies and services are not included in IONADA’s work and shall be made available to IONADA’s personnel:
– Assistance for transport of materials to and from the work site.
– Necessary scaffolding.
– Overhead cranes, blocks, fall wires, and shackles.
– General assistance for cleaning, etc.
– Supplies of electricity, compressed air for working and personnel protection equipment, water and fuel, and necessary lighting.
15.0 The Buyer’s liability and insurance
15.1 The Buyer shall pay compensation and indemnify IONADA in case of damage to IONADA’s property Or injury or death Of personnel employed by IONADA or any third party when and to the extent that such injury or death is caused by the Buyer’s negligence, whether direct or indirect. Such negligence may be constituted by lack of necessary instructions concerning the work to be carried out by IONADA’s personnel.
15.2 The Buyer is obliged to inform IONADA on any material containing asbestos. IONADA cannot in any way, whatsoever, be held liable for the contents Of any such material, including for any financial consequences thereof or consequences of safety or as regards time. The Buyer undertakes to indemnify IONADA for all costs, expenses and consequences caused by any such contents of asbestos.
15.3 The Buyer is responsible for removal, disposal Of, or the consequences Of the presence of dangerous. poisonous or otherwise polluting materials.
15.4 Where the Buyer establishes or is covered by a Builder’s Risk Insurance, ship repairers legal liability insurance, or other general liability insurance, IONADA and IONADA’s work shall be covered by such insurance and subrogation against IONADA shall be waived.