Terms and conditions of sale;
Сonditions for the provision of services
Hansa Diesel OÜ terms and conditions of sale
1. Definitions
1. In these Conditions (“The Conditions”)
“HD” means Hansa Diesel OÜ
“the Buyer” means the party who has placed the Order with HD
“the Order” means the Buyer’s instructions to HD to supply the Goods
“the Goods” means the goods or articles the subject of the Order
“the confirmation of Order” means the written confirmation by HD of the Order
“the price” means the price for the goods (exclusive of Value Added Tax) specified in the confirmation of Order
“the Contract” means the contract for the sale of goods made between HD and the Buyer incorporating the Conditions.
2. Acceptance of Order
2.1 A confirmation of Order shall be in writing.
2.2 An Order is accepted by HD exclusively upon these conditions and no other conditions, terms, provisions or other representations whatever whether referred to in negotiations or set out in the Order or otherwise shall be incorporated into the Contract unless the Buyer and HD expressly so agree in written memorandum which shall refer to the Contract and be annexed to the Confirmation of Order.
3. Price
The price(s) payable for the Goods shall be HD’s prices ruling at the date of despatch so that HD shall have the right at any time before delivery to revise quoted prices set out in the Confirmation of Order or otherwise.
4. Delivery
4.1 Any delivery date specified in the Confirmation of Order or otherwise shall be deemed an estimate only, and HD shall not be liable for failure to deliver in accordance with that date nor for any loss, damage or expense whatsoever however caused or arising out of any loss or delay in delivery.
4.2 The Buyer shall not be entitled to refuse to accept the Goods because of late delivery.
4.3 Unless otherwise agreed between HD and the Buyer and stated accordingly in the Confirmation of Order, delivery shall be Ex Works (as defined in Incoterms 2000) at the premises of HD’s supplier unless the Goods are supplied from HD’s stock in which case delivery shall be Ex Works at HD’s premises.
4.4 Where delivery is made by instalments, each such instalment shall be deemed to the subject of a separate Contract.
5. Payment
5.1 The mode of payment of the price, and a note of any advance payment received or required by HD may be stated on the Confirmation of Order and unless so stated the price shall be paid in full by the Buyer no later than thirty (30) days from the date of HD’s invoice. The currency of payment shall be the currency of the Contract or (at the election of the Buyer) some other currency, provided that it is freely convertible into the currency of the Contract and is to be converted at the rate prevailing of the London Foreign Exchange Market at the time when such payment is received by HD, and it includes in full any bank or exchange charges levied against HD as a result of such conversion.
5.2 Where any advance payment is required by HD the Contract shall be conditional upon its receipt by HD.
5.3 Time for payment as stipulated in the Confirmation of Order shall be the essence of the Contract. In the case of Goods sold or delivered by instalments, each instalment shall be paid for separately.
5.4 Where payment is to be made by bill(s) or exchange or cheque(s) payment shall be deemed not to have been made until the said bill(s) or cheque(s) are honoured by the Buyer.
5.5 Where full payment has not been received by HD on the due date HD shall (without prejudice to its rights under the Contract or otherwise) be entitled to charge interest on the amount outstanding at a rate per annum equal to 16 percent or 3 percent above Swedbank’s Base Lending Rate for the time being in force (whichever is greater).
5.6 If the contract is cancelled by the customer, Hansa Diesel OÜ shall be entitled to either demand compensation for the loss and lost profit incurred or a 30% cancellation fee. In addition, the customer shall return the purchased item/s upon request immediately to Hansa Diesel OÜ at the former's cost. In the event of default of payment or default of/delayed acceptance on the part of the customer in spite of a 8-day period of grace, Hansa Diesel OÜ shall, without prejudice to any other rights, have the right to take the goods that are its property back, which shall not be equivalent to a cancellation of contract, or to cancel the contract in full or in part while maintaining its rights, in particular the right to claim damages for non-performance. Any retention of payments on the basis of any warranty claims or other potential claims of the customer shall be excluded unless where the validity of the claims of the customer has expressly been acknowledged by us.
6. Passing of Risk and Property in the Goods
6.1 The Goods shall from delivery be at risk of the Buyer PROVIDED THAT where delivery is delayed at the request of the Buyer for more than one month, HD shall be entitled to place the Goods in store at the Buyer’s risk and expense.
6.2 The property in the Goods shall not pass to the Buyer whether or not the Buyer has taken delivery of the Goods or any part thereof until the Buyer shall have paid to HD the whole of all sums due to HD hereunder and the Buyer shall not without prior written consent of HD sell, assign, pledge, mortgage, charge, let, part with possession, or otherwise dispose of the Goods or any part thereof until the property in them has passed to the Buyer.
6.3 The Buyer shall so long as it is possible so to do make such arrangements for the storage and identification of the goods as to ensure that they are identifiable as the property of HD.
7. Specifications
7.1 All data containing specifications of weights, dimensions, quantities and the like which are contained in HD’s catalogue or other literature are hereby declared to be approximate only as are also all weights and dimensions of shipments.
7.2 While HD has taken care to ensure the accuracy of any information data or advice included in any catalogue or other literature furnished to the Buyer, HD accepts no liability in respect of such information, data or advice, whether given negligently or not, or for the use if Goods in any particular way suggested thereby, and the Buyer shall at the time the Contract is made be deemed to have carried out its own investigations and tests of the Goods.
7.3 Notwithstanding the provisions of clause 17 HD reserves the right upon giving notice of its intention to the Buyer to make modifications to the Goods at any time before delivery provided that upon receiving such notice the Buyer shall (if the said modifications are material) be entitled to elect to terminate the Contract.
7.4 Subject to the foregoing the Buyer shall inspect the Goods immediately upon arrival at its premises and shall within fourteen days of their arrival notify HD of any damage, shortage, loss or other particulars by reason of which it alleges that the Goods supplied do not conform with the Contract. If no such notice is received the Goods shall be deemed to have been supplied in accordance with the Contract and to have been accepted by the Buyer.
7.5 Where the Buyer gives notice to HD by virtue of sub-clause 7.4 it shall preserve the Goods intact and as delivered for a period of fourteen days after receipt by HD of the notification, during which period HD its agents or servants shall be at liberty to attend the Buyer’s premises to investigate the complaint.
7.6 If the Buyer fails to comply with either of sub-conditions 7.4 or 7.5 it shall be deemed to have waived all or any claim actions or rights or remedies it may have in respect of the non-conformity of the Goods to the Contract.
7.7 If upon inspection by HD, the Goods are found to be damaged, short or otherwise not in conformity with the Contract, HD shall in its absolute discretion at its own expense replace or otherwise make good the same.
7.8 Damage, shortage, loss or other non-conformity with the Contract which is present only in a proportion of the Goods or (where delivery is made by instalments) in some only of the instalments shall entitle the Buyer to the remedies given by this Condition only in respect of that proportion or instalment.
7.9 Notwithstanding the provisions of this Clause, HD shall have no liability to the Buyer pursuant to sub-clause 7.7 to the extent that the said damage, storage or loss occurred after risk in the Goods passed to the Buyer.
8. Seller’s Guarantee
8.1 In consideration of the Guarantee given by HD as set out below the Buyer expressly agrees that:
(i) The said Guarantee is given by HD in lieu of and to the entire exclusion of every condition or warranty whether statutory or otherwise whatsoever, except to the extent that the statue prohibits such exclusion.
(ii) The liability of HD howsoever arising is limited to exchange or repair (at HD’s discretion) of any part or parts of Goods to extent of and no further than as set out in the said Guarantee.
(iii) HD is released from any other form of liability including consequential loss or damage caused or arising by reason on the goods not being of the type or quality ordered or by reason of the Goods being delayed or be reason of any other matter whatsoever.
GUARANTEE
For a period of 6 (six) months from the date on which the Goods are delivered to the Buyer HD will exchange or repair (at HD’s discretion) any part or parts thereof requiring replacement or repair by reason of faulty design, workmanship or material, save that:
(a) HD will not be responsible for any expenses which the Buyer and/or User may incur in removing or having removed or replacing any part or parts of the Goods sent for inspection or fitting or having fitted any replacement or new parts supplied in lieu thereof.
(b) No claim for exchange or repair can be considered unless the defective part or parts are returned at sole cost of the Buyer carriage paid to HD’s works together with the following information:
(i) The Seller’s reference on the Goods from which the part or parts were taken.
(ii) The defects claimed and the reasons for them.
(iii) The date of purchase and the source from which the Goods were purchased.
(c) This Guarantee does not extend to any defect which in the opinion of HD (which opinion shall be final) was attribute to:
(i) Any form whatsoever of improper use.
(ii) Wear and tear.
(iii) Non-compliance with any instructions issued by HD.
(iv) Incorrect fitment howsoever caused.
(v) Neglect of others.
(vi) Abnormal corrosive or abrasive conditions.
(vii) Any alternation or modification having been made to the Goods or any parts thereof or any connected parts without the express approval of HD given in writing.
9. Buyer’s Undertakings
The Buyer accepts full liability for and shall at all times indemnity HD against all actions claims demands costs charges and expenses whatsoever arising out if any loss or damage due to any person firm company or property by reason of HD having relied on any data, documents, drawings gauges, samples, models or the like supplied to HD by or at the instigation of the Buyer in connection with the performance of the Contract.
10. Health and Safety at Work etc. Act 1974
The Buyer hereby undertakes to take all steps sufficient to ensure, so far as is reasonably practicable, that the Goods will be safe and without risks to health by properly using and handling them in accordance with the recommendations of HD.
11. Termination of the Contract by HD
11.1 HD may terminate the Contract forthwith by written notice to the Buyer upon the happening of any of the following events:
(i) Where full payment in respect of the Goods or any instalment of the Goods has not been received by HD by the date specified as the date for payment
(ii) Where the Buyer has failed to provide any Commercial Credit, Bill Exchange, or other security required by the Contract.
(iii) Where the Buyer being an individual, commits any act of bankruptcy, or, being a corporation, goes into liquidation or has a receiver appointed of all or any of its assets by virtue of Section 518 of the Companies Act 1985 is deemed unable to pay its debts.
(iv) Where the Buyer is in breach of any of these Conditions.
11.2 The granting by HD to the Buyer of time or any other indulgence forbearance or concession shall in no way prejudice or constitute a waiver of HD’s entitlement to enforce any of its rights under the Contract expect and to the extent that it shall either constitute a variation of these conditions which has been made in accordance with clause 17.
11.3 If HD terminates the Contract in accordance with this Clause, then, without prejudice to any other rights HD may have, it shall be entitled to retain any advance payment made by the Buyer.
12. Cancellation by the Buyer
The Contract may be cancelled by the Buyer only with HD’s written consent, which shall be given or withheld at the sole discretion of HD and upon such terms as HD may deem fit.
13. Force Majeure
In the event of:
riots, civil disturbance, strikes, lock-outs, industrial disputes, fire, floods, heat, frost, storm or other intemperate weather, Act of God, Act of Queen’s enemies or war (whether declared or not) or other hostilities carried on by any parties whatsoever, restraints or rulers if peoples including interferences by departments of governments in the Estonia or abroad, perils of the sea, breakdown in machinery, shortages of raw material or fuel or labour, shortages or breakdown of shipping or other means of transport, failure or delay by customary suppliers or sub-contractors of HD (whether their involvement in HD’s performance of the Contract is known to the Buyer or not) to provide materials required in the production of the Goods or any other unforeseen or exceptional circumstances whatsoever affecting or hindering the performance of the Contract by HD – HD may in its discretion either:
(i) terminate the Contract and return any advance payment made in respect thereof of the Buyer; or
(ii) delay delivery for such period or periods as it shall consider necessary (in which case the provisions of sub-clause 4.1 and 4.2 shall apply) and in either case the Buyer shall have no claims whatsoever howsoever arising against HD in respect of such termination if delay.
14. Confidentiality
14.1 Any drawings or technical documents intended for use in the manufacture or construction of the Goods and submitted to the Buyer prior or subsequent to the formation of the Contract remain HD’s exclusive property. Such drawings or technical documents may not without HD’s consent be utilised by the Buyer or copied, reproduced, transmitted or communicated to a third party. The said drawings and documents shall become property of the Buyer only if it is expressly so agreed in writing by HD.
14.2 In the event that an Order or Contract is not proceeded with for any reason whatever, each party shall upon demand return to the other all such material as is referred to in the preceding sub-clause and undertake to destroy any copies thereof which may have been made by it.
15. Assignment
The Contract is personal to the Buyer, which shall not assign or charge the benefit thereof in any manner whatsoever without HD’s express written consent.
16. Law
The Contract shall in all respects be constructed and operate in accordance with Estonian law, and the Buyer hereby submits to the non-exclusive jurisdiction of the Estonian courts.
17. Variation
Except as provided in clause 7.3 hereof after formation of the Contract any alterations amplifications modifications limitations or additions thereto must be agreed by the parties, made in writing, refer to the Contract, and be annexed to the Confirmation of Order.
18. Notices
18.1 Notices shall be made in writing and posted in a first-class pre-paid envelope to the Buyer’s or Seller’s address as shown respectively on the Order and Confirmation of Order or failing those to the address at which one party reasonably believes the other to be carrying on business.
18.2 A notice shall be deemed to have been given forty-eight hours after posting (or ninety-six hours after posting where the notice is sent from and/or addressed to an address outside the Estonia)
19. Construction
The clause headings hereto shall not affect the construction of these Conditions.
Conditions for the provision of services
1. Definitions
In these conditions (“the conditions”)
(a) “HD ” means Hansa Diesel OÜ and (where appropriate) its officers, employees and agents
(b) “the Customer” is the person, firm or company ordering the Services from HD
(c) “the Services” are all and any of the services including (without limitation) assembly, fitting and repair installation to be provided by HD
(d) “the Order” means the Customer’s instructions to HD to provide the Services
(e) “the Confirmation of Order” means the written confirmation by HD of the Order
(f) “the Contract” means the contract for the provision of the Services made between HD and the Customer incorporating the Conditions.
2. Acceptance of Order
(a) A Confirmation of Order shall be in writing
(b) An Order is accepted by HD exclusively upon these Conditions and no other conditions, terms, provisions or other representations whatever whether referred to in negotiations or set out in the Order or otherwise shall be incorporated into the Contract unless the Customer and HD expressly so agree in a written memorandum which shall refer to the Contract and be annexed to the Confirmation of Order
3. Travelling Expenses
The Customer shall reimburse HD in respect of all travelling and transport costs (including but not limited the cost of insurance and costs of carriage of personal luggage and tools) incurred by HD its employees or agents in connection with the provision of the Services.
4. Prices
(a) The price(s) payable for the Services shall be calculated in accordance with HD’s current man/hour rates unless a fixed rate or sum has been agreed.
(b) If by reason of any law, governmental order or regulation the price and/or terms of payment hereunder or any increase change or variation thereto or the right of HD to require or receive any such payment shall be altered, prohibited or hindered in any way HD may forthwith thereupon terminate the Contract by notice to the Customer.
(c) All prices are exclusive of VAT which shall be added at the rate of force at the appropriate time. The Customer shall be liable to pay (or if paid by HD shall reimburse HD in respect of) all taxes, duties and fees payable in connection with the supply of the Services hereunder.
5. Payment
(a) The price, including, where applicable, travelling and carriage charges and any disbursements by HD personnel shall be paid on the due date which (in the absence of any agreement to the contrary) is 14 days from the date of HD’s invoice.
(b) The Customer shall in no circumstances be entitled to make any deduction from the price payable by way of set-off or otherwise in respect of any claim or counterclaim which it may have against HD .
(c) If the Customer shall default in payment of the price on the due date without prejudice to any other of HD’s rights interest shall accrue thereafter from day to day (as well before as after judgement) on any sums outstanding until payment is made at an annual rate of 16% or 3% above the Swedbank’s base lending rate for the time being in force (whichever is greater).
(d) If the Customer shall at any time default in payment of the price on the due date or if the Customer’s credit standing is at any time in the opinion of HD impaired for any other reason HD shall in addition and without prejudice to any other of its rights, have the right:-
(i) to demand forthwith payment for all services provided to the Customer whether or not any such payment is due; and/or
(ii) to supply services on a cash-in-advance basis or require the Customer to provide security for future payments satisfactory of HD.
6. Hours of Work
(a) HD’s shall attempt (so far as possible) to comply with any normal hours or work established by the Customer.
(b) The Customer shall certify on HD’s standard from the hours actually worked by HD’s personnel as well as the work carried out by them.
(c) Reasonable travelling time (as well as the time spent performing the Services) will be charged to the Customer as if such time was expanded performing the Services.
(d) Waiting time, time expanded searching for accommodation and time expanded reporting to any relevant authorities shall also be charged as working time, in so far as working time is lost thereby.
7. Safety Regulations
(a) HD’s employees and agents are instructed to comply with any safety regulations in force.
(b) The Customer shall take all necessary measures for the protection of persons and property at the place where the Services are to be performed. The Customer shall fully inform HD in advance of all existing safety regulations and shall notify HD of any and all breaches of such regulations by its employees or agents. In the case of serious breaches the Customer can (if HD agrees) refuse the relevant person(s) admittance to the place for performance of the Services.
8. Technical Assistance
(a) The Customer shall provide technical assistance at its own cost and in particular (without limitation) shall:
(i) provide all necessary suitable assistants including (without limitation) carpenters, fitters, staging builders and such other skilled workers and assistances as maybe required for the provision of Services for the duration of the Services. Such assistants shall comply with all reasonable instructions of HD. Any loss or damage whatsoever caused either directly or indirectly by such assistants shall be the sole responsibility of the Customer and HD accepts no such liability whatsoever howsoever arising from any damage loss or injury caused by such assistants howsoever arising;
(ii) Undertake staging work including the procurement of the necessary construction materials;
(iii) provide, according to HD’s specification, a suitable working platform or pontoon, as the case may be, for outboard work. A motor boat shall remain in constant readiness in the immediate vicinity of the place of work;
(iv) provide all necessary heavy appliances and equipment and tools (for example
lifting appliances), as well as the necessary requisite materials (for example word or scaffolding for staging, sealing materials and lubricants);
(v) provide heating, lighting, power current and compressed air, including all necessary connections;
(vi) provide rooms needed for the safekeeping of tools. Such rooms shall be dry and capable of being locked;
(vii) transport to the place of work articles required for the Services that have been delivered in advance. The Customer shall protect such articles required for the Services against injurious influences of all kinds and clean the articles required for the work;
(viii) provide suitable safe and thief proof rest rooms (with heating, lighting, washing facilities and sanitary equipment
(ix) provide such materials and take all other actions that are necessary for the adjustment of the object of supply and for the carrying out of a test as provided for in the contract.
(b) The technical assistance shall also be such as to ensure that the Services can be commenced immediately after HD’s arrival. So far as special drawings or instructions are required from HD , HD shall use its reasonable endeavours to make these available to the Customer in good time.
(c) If the Customer fails to fulfil its obligations under this Condition, HD shall have the right to carry out such obligations at the Customer’s cost.
9. Extent of Services
HD shall advise the Customer of the extent of the Services. It is agreed that HD shall be entitled to rely on the opinion of a classification society or of its authorised representative. The Customer shall, however, itself make the decision on the extent and practicality of the Services and to that extent assume the risk for such decision.
10. Time Limit for provisions of the Services
All statements on any time limit for provision of the Services are approximately only. HD shall be under no liability for any loss, injury, damage or expense whatsoever consequent upon any delay from whatever cause including (without limitation) HD’s negligence. Delay shall not entitle the Customer to cancel the Contract.
11. Inspection and Rejection
The Customer shall inspect the work effected by the Services as soon as the Customer receives notice that the Services have been completed and that any test which may have been specified in the Contract has been carried out. Such inspection shall be deemed to constitute acceptance by the Customer unless the Customer notifies HD of any defect within seven days of the date of receipt by the Customer of notice that the Services have been completed.
12. Force Majeure
HD shall not be liable to the Buyer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of the Services by HD being directly or indirectly prevented, hindered or delayed by reason of any circumstances outside the control of HD and affecting the provision of all or any part of the Services by HD’s normal means, or other circumstances whatsoever, including (without limitation) any act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, failure or shortage of power supplies, fire, flood, drought, explosion, difficulty in obtaining workmen, materials or transport, refusal of any license or permit or any other sanction or request of any Government or government authority. In the event of any such circumstances HD shall have the option (exercisable by notice to the Customer) to terminate the Contract (whereupon both HD and the Customer shall be relieved of all liability under the Contract) in all cases without incurring any liability for any loss or damage suffered by the Buyer as a result.
13. Termination
If the Customer shall fail to make any payment when it becomes due, or shall default in the due performance or observance of any other obligation under the Contract, or shall enter into any composition or arrangement with creditors, or shall pass a resolution or the Court shall make an order that the Customer shall be wound up (otherwise than for the purpose of amalgamation or reconstruction), or if a receiver shall be appointed over any of its assets or undertakings, or (being a natural person) if a receiving order is made against him or he shall be adjudged bankrupt or if the Customer shall take or suffer any similar action in consequence of debt, HD may cancel further provision of Services and by notice in writing to the Customer may forth with determine the Contract, without prejudice to its rights under the Contract and otherwise at law.
14. Warranty, Liability and Indemnity
(a) HD warrants that it will exercise reasonable skill and care in executing the Services. If the Services do not conform with the warranty HD shall take such steps as it deems necessary to rectify any defect
PROVIDED THAT
HD’s liability shall in no event exceed the lesser of EUR 5,000 or the price(s) payable or paid by the Customer for the Services and performance of the above option (as limited by this provision)shall constitute an entire discharge of HD’s liability under the Warranty.
(b) The forgoing warranty is conditional upon:-
(i) HD receiving from the Customer within seven (7) days of discovery full details of any defect or deficiency, but in any case within 3 months following completion of the service;
(ii) the Customer affording HD reasonable opportunity to make its own inspection;
(iii) the Customer complying with any instructions or recommendations of HD.
(c) If it is found in HD’s sole judgement that the alleged defect is not covered by the terms of the foregoing warranty or if the warranty claim is made outside of the relevant warranty period the Customer shall pay all cost of repair at HD’s then current rates and all transportation costs from HD’s premises to the Customer’s premises.
(d) Save as provided in Condition 14(a) HD shall have no liability to the Customer (except in respect of death or personal injury resulting from negligence) in respect of any deficiency in the Service or other breach of contract of whatsoever nature or other default or negligence on the part of HD its employees sub-contractors or agents and all conditions warranties or other terms, whether expressed or implied, statutory or otherwise, in relation to the Services, their standard and fitness for any purpose are hereby excluded. Without limiting the foregoing:-
(i) HD shall not be liable in respect of any loss or damage whatsoever arising from the claim of any person, firm or company against the Customer nor for any loss of profits, loss of business, economic loss or other consequential loss or damage suffered by the Customer
(ii) all recommendations and advice given by or on behalf of HD are given without liability on the part of HD
(iii) all drawings, photographs, illustrations, specifications, performance data, dimensions, weights and the like, contained in any literature or other material supplied by HD under or in connection with the Contract or otherwise communicated to the Customer are provided or made by HD in the belief that they are as accurate as reasonably possible but they shall not be taken as representation by HD nor are they warranted to be accurate
(e) The Customer shall indemnify HD in respect of any loss or damage whatsoever arising from the claim of any person against HD in relation to the Services.