General Terms And Condition Contract Of Azuma Engineering (Shanghai) Co., Ltd.
Article 1 – General
In these ‘General Terms and Conditions for Provision Services’ the following definitions are used:
1.1. “Azuma” means the user of these terms and conditions, being: AZUMA ENGINEERING (SHANGHAI) CO. LTD.
1.2. “General Terms and Conditions” means these General Terms and Conditions for Provisions of Services of Azuma.
1.3. “Customer” means the contracting party of Azuma, being the (potential) Customer or a legal person acting on behalf of the (potential) Customer.
1.4. “Agreement” and/or “Contract” means the agreement and/or subsequent agreements between Azuma and (one or more) Customer(s) concerning the performance of services by Azuma, as laid down in the Agreement and in additional or follow-up Agreements.
1.5. “Parties” means Azuma and its Customer.
1.6. “Goods” means any components, parts, assemblies, goods, products, materials and equipment.
1.7. “Services” means the repair and overhaul of main and auxiliary engines and other components and/or any other services that are provided by Azuma.
Article 2 – Applicability
2.1. These General Terms and Conditions apply to all legal relationships under which Azuma acts as (potential) supplier of services and/or Goods. The term ‘legal relationships’ also entails all obligations between Azuma and the Customer arising from written or unwritten law. This also includes any continuing performance agreement applicable between Azuma and the Customer (arisen implicitly or otherwise), arising from a series of isolated agreements and/or a consistent commercial relationship between Azuma and the Customer.
2.2. Deviations from these General Terms and Conditions must be explicitly agreed upon in writing. Any such deviation has no effect in respect of any other (future) agreements.
2.3. The applicability of the general conditions used by the Customer is hereby expressly rejected.
2.4. Should there be a conflict between the terms of these General Terms and Conditions and the terms of the Agreement and/or Contract, the terms of the Agreement and/or Contract shall prevail.
2.5. If Azuma does not invoke the provisions of these General Terms and Conditions in a particular case, this does not mean that Azuma has waived the right to invoke the provisions of these General Terms and Conditions in other cases.
Article 3 – Offers
3.1. All quotes, offers and price specifications made by Azuma are without commitment and subject to confirmation so that Azuma is always entitled to revoke the offer, regardless of whether there is a term within which the acceptance must have been effected. Azuma is entitled to revoke the offer within two working days after acceptance.
3.2. A proposal of Azuma is valid only for the Customer to which it has been made and only for the duration of the term of validity.
3.3. All product information supplied by Azuma, including samples, recommendations and information regarding fitness for purpose, composition, formula, certificate of analysis, reports and application shall be regarded as indicative only. No rights can be derived from information that is contained in images, catalogues, technical drawings and other information supplied by Azuma.
3.4. If the Customer provides Azuma with data, drawings and the like, Azuma may rely on their accuracy and completeness and shall base its offer on the same.
Article 4 – Agreement
4.1. An Agreement between Azuma and the Buyer is only concluded after the Customer has confirmed acceptance of the quotation/offer/contract provided by Azuma, and/or returned a signed copy of the same, and/or Azuma has confirmed the order of the Customer by means of a written order confirmation or after Azuma has started the performance of the agreement.
4.2. A change in or addition to an agreement is valid only if it has been agreed expressly and in writing between Azuma and the Customer.
4.3. If provision of the services takes place without prior consultation about price, quantity, composition and/or conditions, the Customer is bound to the price and the conditions that Azuma determines for the delivery.
4.4. Azuma reserves the explicit right to enable third parties in the execution of the Contract(s) given by the Customer.
Article 5 – Prices
5.1. The prices are in the currency as provided for in the offer or quotation, unless explicitly otherwise agreed.
5.2. The prices are exclusive of taxes, duties and other charges. Any such taxes, duties and other charges shall be for the Customer’s account unless otherwise agreed in writing.
5.3. Azuma has the right to charge taxes, import duties, charges and other payments imposed by the government which were not known or did not apply when making the contract, or increases thereof on to the Customers.
5.4. Revocations or reductions of the taxes, import duties, levies or other payments imposed by the government, which were not taken into account when determining the contract price, will inure to the Customer.
Article 6 – Payment
6.1. The Customer must pay the agreed price and any other amounts due (including but not limited to taxes, duties and other charges) within thirty (30) days after the invoice date, unless explicitly otherwise agreed in writing. The day of payment is the day of deposit on Azuma’s bank account. Payments by cash or cheque will not be accepted. The payment must be effected in the Netherlands to Azuma Europe B.V., unless otherwise agreed.
6.2. If the Parties have agreed on payment in advance, without further indication, it will be assumed that such payment, unless otherwise agreed, refers to the full price and that the advance payment must be received on Azuma’s bank account in immediately available funds at least thirty (30) days before the agreed date execution of the services. If advance payment has been agreed only for a part of the contract price, the payment conditions of the remaining amount will be determined according to the provisions set forth in this Clause 6.
6.3. The Customer’s right to offset its claims against Azuma or to suspend the fulfilment of its obligations is excluded, unless Azuma has been granted a suspension of payments or is bankrupt or the statutory debt adjustment scheme applies to Azuma.
6.4. If the Customer fails to pay the invoice within the term set by Azuma, passes away, is declared bankrupt or applies for a suspension of payments, the Customer will be in default without notice of default being required and all payment obligations will then become immediately due and payable.
6.5. In the event of late payment, the Buyer will owe Azuma the statutory late payment interest pursuant to article 6:119a DCC.
6.6. If the Customer fails to pay in a timely manner, the Customer will, in addition to the above, owe Azuma a penalty in the amount of 10% of the invoice price, without prejudice to Azuma’s right to (i) dissolution (ontbinding) as set out in article 14 of these conditions or (ii) claim performance of the Agreement, in all cases without prejudice to Azuma’s right to claim the damage actually suffered as a result of the Customer’s non-performance.
6.7. If the Customer fails to perform its obligations, it will owe extrajudicial (collection) costs, which are set at 15% of the principal sum due or the damage suffered or the costs actually incurred for legal assistance, whichever is a higher amount, as well as all judicial costs incurred.
6.8. If Azuma has reasonable grounds to doubt that the Buyer is able to fulfil its payment obligations and/or other obligations, which is in any event so if the Customer leaves a due debt unpaid, Azuma will be entitled to demand that the Buyer advances the agreed amount or that the Buyer furnishes sound security therefore. Until the Buyer has done so, Azuma will be entitled to suspend its performance under the Agreement. The amount of the prepayment or the amount and/or the soundness of the security to be furnished will be assessed by Azuma.
Article 7 – Advice and Information Provided
7.1. The Customer cannot derive any rights from advice and information provided by Azuma that is not directly related to the Contract.
7.2. If the Customer provides Azuma with information, Azuma may assume that it is accurate and complete when implementing the agreement.
7.3. The Customer indemnifies Azuma against any third-party claims related to the use of advice, drawings, calculations, designs, materials, brands, samples, models and the like provided by or on behalf of the Customer. The Customer will compensate Azuma for all damage suffered by Azuma, including all costs incurred for defence against these claims.
Article 8 – Delivery time/implementation period
8.1. Delivery times or implementation periods specified are indicative.
8.2. The delivery time or implementation period only commences once an agreement has been reached on all commercial and technical details, once all the information is in the possession of Azuma, and the other conditions for the contract have been met.
a. there are circumstances other than those known to Azuma at the time it set the delivery period or implementation period, the delivery period or implementation period may be extended by the time Azuma needs – taking into account its planning – to implement the contract under these circumstances;
b. there are contract extras, the delivery period or implementation period may be extended by the time Azuma needs – taking into account its planning – to have the materials and parts delivered and to carry out the contract extras;
c. Azuma suspends its obligations, the delivery period or implementation period may be extended by the time Azuma needs – taking into account its planning – to implement the contract after the reason for the suspension no longer applies.
Unless the Customer has evidence to the contrary, the duration of the extension of the delivery period or implementation period is presumed to be necessary and to be the result of a situation as referred to above in a to c.
8.4. The Customer is obliged to pay all costs that Azuma incurs or damages that Azuma suffers as a result of a delay in the delivery or implementation period as stated in article 8.3.
8.5. Under no circumstances does exceeding the agreed delivery or implementation period give the Customer the right to compensation or to terminate the agreement. The Customer indemnifies Azuma against any third-party claims due to exceeding the delivery or implementation period.
Article 9 – Delivery of Goods
9.1. Delivery takes place when Azuma makes the Goods available to the Customer and has informed the Customer that the Goods are at its disposal.
9.2. The Customer and Azuma may agree that Azuma will organise the transport. In that case, the Customer bears the risk of, inter alia, storage, loading, transport and unloading. The Customer can insure itself against these risks.
Article 10 – Force Majeure
10.1. If Azuma fails to fulfil its obligations, this cannot be attributed to Azuma if this failure is due to force majeure.
10.2. Force majeure includes, inter alia, if third parties engaged by Azuma – such as suppliers, subcontractors and transporters, or other parties that the Customer is dependent on – do not meet their obligations at all or on time, or circumstances due to weather conditions, pandemics and/or measures of governmens to combat the samenatural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failures, loss, theft or loss of tools, materials or information, roadblocks, strikes or work interruptions and import or trade restrictions.
10.3. Azuma is entitled to suspend fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations to the Customer due to force majeure. Once the force majeure circumstances no longer apply, Azuma will fulfil its obligations as soon as its planning permits.
10.4. If it concerns force majeure and fulfilment is or becomes permanently impossible, or the temporary force majeure circumstances have lasted for more than six months, Azuma is entitled to terminate the agreement with immediate effect either entirely or in part. In those cases, the Customer is entitled to terminate the agreement with immediate effect, but only for that part of the obligations that Azuma has not yet fulfilled.
10.5. The parties are not entitled to compensation for the damages suffered or to be suffered as a result of the force majeure, suspension or termination as referred to in this article.
Article 11 – Delivery of the work
11.1 The work is considered to be delivered in the following cases:
a. once the Customer has approved the work;
b. if the Customer has put the work into operation. If the Customer puts part of the work into operation, then that part is considered to have been delivered;
c. if Azuma has notified the Customer in writing that the work has been completed, and the Customer fails to inform Azuma in writing that the work has not been approved within 14 days of the day of the notification;
d. if the Customer does not approve the work on the grounds of minor defects or missing parts that can be repaired or delivered within 30 days and that do not hinder the commissioning of the work.;
11.2 If the Customer does not approve the work, it is obliged to inform Azuma of this in writing, stating the reasons. The Customer must give Azuma the opportunity to deliver the work at a later date.
11.3 The Customer indemnifies Azuma against third-party claims concerning damage to parts of the work not delivered due to the use of parts of the work that have already been delivered.
Article 12 – Transport and Transit
12.1 Any transport costs, taxes, fees, duties or charges paid by Azuma on behalf or for the benefit of the Customer, for purpose of importing and exporting the Goods to and from the Customer’s vessels or warehouse shall be chargeable to the Customer.
12.2 Any lighterage, crane service, loading and unloading, stevedoring and handling charge at the port for the purpose of collecting or delivering the Goods shall be chargeable to the Customer.
12.3 When the Customer has given specific instructions to deliver the Goods to the Customer or Customer’s representatives, servants, shipmasters, chief engineers, superintendents or agents , and no notice of any damage to the components is given upon delivery it is deemed that the Components were delivered in full and to the satisfaction of the customer.
12.4 When instructions are given by the Customer to Azuma to deliver Goods to a vessel, address, place or person, the Components will be carried, transported, forwarded, dealt with etc. at Customer’s risk. In any case, Azuma is not responsible for any loss or damage to the Goods, howsoever caused, that arises after Goods have left the Company’s warehouse, nor is the Company responsible for any deviation, delay or discrepancy, howsoever caused, unless it can be proven that this is the result of any willful misconduct or gross negligence of Azuma.
12.5 Azuma will declare the true nature and value for the services rendered to the Goods with the authorities for the purpose of shipping, declaration and documentation. Azuma is not obliged or liable for any claims or charges arising from the ommission of any other amounts, prices, costs and values of Goods from such declarations if Azuma is not expressly instructed by the Customer to include such information in the declaration or documentation.
Article 13 – Insurance
13.1 The Customer is hereby expressly advised that no insurance has been taken out by Azuma to cover potential damages:
– to the Goods, assets or property owned by the Customer, whilst services or work are being provided by Azuma;
– to the Goods, assets or property owned by the Customer, caused by the Goods provided by Azuma;
– to the Goods delivered by the Customer to Azuma whilst these Goods are in the custody and/or under the control of Azuma and/or its subcontractors, or whilst Goods are on the premises of Azuma.
13.2 The Customer is expressly advised to take out insurance to cover the risks that are for its account on the basis of these Conditions, in particular in view of Articles 14 and 15 here below.
Article 14 – Liability
14.1 Azuma is not liable for any damages that are the result of the work carried out or the services provided or the goods delivered by Azuma, irrespective of the legal basis of the claim against Azuma, unless the damage results from an act or omission of Azuma or the management of Azuma, either committed or refrained from with the intention to cause that damage or recklessly and with the knowledge that that damage would very probably arise (in Dutch: opzet of bewuste roekeloosheid).
14.2 If, for any reason whatsoever (so also in the case Azuma in this respect accepts any liability), Azuma is liable in accordance with Article 14.1, the obligation to pay damages will be limited to the total Contract amount (excluding VAT). If the Agreement comprises parts or partial deliveries, the obligation to pay damages is limited to a maximum of the Contract amount of that part or that partial delivery.
14.3 Azuma will never be liable for:
a. consequential damages and/or loss, including inter alia business interruption loss, production loss, loss of profit, penalties, transport costs and travel, accommodation and subsistence expenses;
b. damage to property in the care, custody or control, but not owned by the Customer. Such damage includes damage caused as a result of or during the performance of the Contract to goods on which work is being performed or to goods situated in the vicinity of the work site;
c. damage caused by the intent or gross negligence (in Dutch: opzet of bewuste roekeloosheid) of agents or nonmanagement employees of Azuma.
d. consequences of defects and/or discrepancies between quality requirements set by the Customer which were not confirmed in writing by Azuma, and quality requirements set by third parties.
The Customer can take out insurance for these damages if possible.
14.4 Azuma is not obliged to compensate damage to material supplied by or on behalf of the Customer as a result of improper processing.
14.5 The Customer indemnifies Azuma from and against all claims by third parties on account of product liability as a result of a defect in a product supplied by the Customer to a third party and that consisted, entirely or partially, of products and/or materials supplied by Azuma. The Customer is obliged to compensate all damage suffered by Azuma in this respect. Damage includes damage caused by death or injury, damage to properties of third parties, any form of financial loss, “demurrage” and other direct or indirect (consequential) damage that might arise at Azuma or at third parties. This damage also includes judicial and/or extrajudicial costs that Azuma has had to incur to defend itself against claims of third parties. This obligation of the Customer does not apply in so far as the damage results from an act or omission of Azuma or the management of Azuma, either committed or refrained from with the intention to cause that damage or recklessly and with the knowledge that that damage would very probably arise (in Dutch: opzet of bewuste roekeloosheid).
Article 15 – Warranties
15.1 Unless otherwise agreed in writing, Azuma provides the warranties as set out in this Article 15. If the parties have agreed to deviating warranty conditions, the provisions of this Article will remain in full force, unless this is in conflict with those deviating warranty conditions.
15.2 The warranty period on goods delivered ends twelve (12) 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
(iv) 18 (eighteen) months after Delivery of the Goods;
whichever comes first.
15.3 No new or additional warranty shall be available for Goods repaired or replaced according to Article 15.2 of these terms and Conditions.
15.4 No warranty shall be available for Goods other than Goods produced, supplied and/or installed by Azuma.
15.5 The Warranty for Services provided and Work completed by Azuma is as follows. Azuma warrants performance to the best of its abilities until twelve (12) months after the Work of Services were finalised. Any additional warranty with respect thereto is explicitly excluded.
15.6 Claims by the Customer for damage to the object(s) upon which the Services or Work were performed, are governed by Article 14 of these Terms and Conditions.
15.7 If the agreed performance has not been executed properly or the goods do not comply with the contract, Azuma will decide within a reasonable period of time whether it will still perform or whether it will credit the Customer for a proportionate part of the contract amount. If Azuma opts to still execute the performance properly, it will determine the manner and time of execution. The Customer must in all cases offer Azuma the opportunity to do so. If the agreed performance (also) included the processing of material provided by the Customer, the Customer must supply new material at its own expense and risk.
15.8 The Customer is responsible for sending parts or materials that are to be repaired or replaced by Azuma to the Azuma’s business location in China. If the work or services that Azuma has to carry out in order to perform have to be carried out outside China or a service team has to be sent outside China or an external service team has to be hired by Azuma, and the costs involved are higher than the total contract amount, then the difference between the involved costs and the total contract amount will be for the account of the Customer.
15.9 If Azuma decides to perform and the costs involved in doing so are higher than the total contract amount, then the difference between the actual costs and the total contract amount will be for the account of the Customer.
15.10 If the Customer decides to repair or replace the Goods delivered by Azuma without giving Azuma the possibility to perform, then if the costs incurred by the Customer in doing so are higher than the total contract amount, the difference between the actual costs and the total contract amount will be for the account of the Customer.
15.11 The following are for the Customer’s account:
a. All transport or shipping costs;
b. Costs for dismantling and assembly;
c. Travel and subsistence expenses and travel time.
15.12 Azuma is only obliged to implement the warranty when the Customer has fulfilled all of its obligations.
15.13 The Warranty does not cover defects that are the result of:
– Normal wear and tear;
– Improper use;
– Lack of maintenance or incorrect maintenance;
– Installation, assembly modification or repairs carried out by the Customer or third parties;
– Faulty or unsuitable goods originating from or prescribed by the Customer;
– Faulty or unsuitable materials or tools used by the Customer.
15.14 The provisions of Article 15.7 – 15.13 apply by analogy to any of the Customer’s claims based on breach of contract, non-conformity or any other basis whatsoever.
Article 16– Obligation to complain
16.1 The Customer loses the right to claim for a defective performance (see Articles 13 and 14) if it fails to complain to Azuma in writing within ten (10) days after it discovered or should have reasonably discovered the defect.
16.2 The Customer must file complaints regarding invoices with Azuma in writing and within the payment term, subject to forfeiture of all rights. If the payment term is longer than thirty (30) days, the Customer must file its complaint within thirty (30) days of the invoice date at the latest.
Article 17 – Failure to take possession of goods
17.1 The Customer is obliged to take actual possession of the goods that are the subject of the agreement at the agreed location at the end of the delivery or implementation period.
17.2 The Customer must cooperate fully and free of charge to enable Azuma to deliver the goods.
17.3 If the provisions of Article 17.1-17.2 are infringed, the Customer will owe Azuma a penalty for each infringement of EUR 250 per day up to a maximum of EUR 25,000, after Azuma has given notice of default. This penalty can be claimed in addition to compensation by virtue of the law.
17.4 Goods not taken into possession are stored at the Customer’s expense and risk for a maximum period of one year. After one year, Azuma reserves the right to sell, scrap, destruct or otherwise dispose of the Goods and to recover any expenses and costs in respect of the Goods or the Customer from such action.
Article 18 – Dissolution and suspension
18.1 If the Customer does not, improperly or in a timely manner fulfil any obligation arising from the Agreement or from these Conditions, the Customer will be in default without notice of default being required, and Azuma will be entitled, without becoming liable for any damages on that basis and without prejudice to the further rights accruing to Azuma, to suspend the performance of all its obligations and/or dissolve the agreement concerned in whole or in part with immediate effect and without judicial intervention being required.
18.2 In the event of dissolution by Azuma, Azuma will be entitled, at its own discretion, by way of damages, to:
– the possible negative difference between the contract price and the market value of the Goods concerned on the day of non-fulfilment; or
– the difference between the contract price and the price of the substitute purchase;
all the above is without prejudice to Azuma’s right to claim additional or replacement damages.
18.3 Azuma is furthermore entitled, without becoming liable for any damages on that basis and without prejudice to the further rights of Azuma, to dissolve the agreement with the Buyer with immediate effect and without judicial intervention being required, if:
– the Customer is granted a suspension of payments or is bankrupt, or applies for a suspension or threatens to go bankrupt, or attachment is levied of any part of its assets;
– the Customer passes away, ceases its activities, decides to enter into liquidation or otherwise loses its legal personality;
everything without prejudice to Azuma’s right to claim additional or replacement damages.
18.4 Azuma has the right to offset claims against the Customer against debts to the Customer, also if the claims and/or debts are not yet due and payable or eligible for immediate settlement.
18.5 Customer shall indemnify Azuma for any and all losses, liability, costs, claims, damages, (including Consequential Damage), demands and expenses (including legal costs) arising from or in connection with any delay, breach, or non-performance by Customer of the Agreement or any misrepresentation of Customer.
Article 19 – Transfer of rights and obligations
19.1 Azuma has the right to transfer rights and/or obligations pursuant to the Agreement to third parties.
19.2 Unless otherwise agreed, the Customer may transfer rights and/or obligations pursuant to the Agreement to third parties only with the prior written consent of Azuma. Azuma may attach conditions to this consent.
19.3 The Customer undertakes to assign any claim or claims against its insurance company to Azuma immediately on request of Azuma.
Article 20 – Miscellaneous
20.1 The unenforceability or nullity of a provision in these General Terms and Conditions will not have any effect on the validity of the other provisions laid down in these conditions. The General Terms and Conditions will in such case be interpreted as if the unenforceable or void provisions did not form part of this Agreement.
20.2 All information provided to the Customer by or on behalf of Azuma, such as offers, designs, images, drawings and know-how, of whatever nature and in whatever form are confidential, and the Customer will not use it for any purpose other than for the implementation of the agreement. The Customer will not disclose or reproduce such information. If the Customer infringes one of the obligations referred to in this article, it will owe an immediately payable penalty of EUR 25,000 for each infringement. This penalty can be claimed in addition to compensation by virtue of the law.
20.3 The Customer must return or destroy the information referred to in Article 22.2 immediately on request, within a period set at the discretion of Azuma. If this provision is infringed, the Customer will owe Azuma an immediately payable penalty of EUR 1,000 per day. This penalty can be claimed in addition to compensation by virtue of the law.
Article 21 – Period of limitation
All claims against Azuma expire by the lapse of two (2) years after the completion of the services and/or delivery of the Goods to the Customer.
Article 22 – Continuing performance agreement
22.1 In accordance with the provisions of Article 2.1, these Conditions also apply to any applicable continuing performance agreement between Azuma and the Customer (implicitly or otherwise arisen), arising from a series of isolated agreements and/or a consistent commercial relationship between Azuma and the Buyer.
22.2 A continuing performance agreement applicable between Azuma and the Buyer can at all times be terminated (in Dutch: opgezegd worden) in writing by Azuma, with due observance of a notice period of two (2) months.
22.3 A continuing performance agreement applicable between Azuma and the Buyer can at all times be terminated (in Dutch: opgezegd worden) in writing by the Customer, with due observance of a notice period of six (6) months.
22.4 The Customer waives the right to damages that would (possibly) accrue to it if Azuma dissolves the continuing performance agreement.
Article 23 – Governing law
23.1 All legal relationships arising from or relating to these Conditions or the Agreement(s) are governed exclusively by Dutch law.
23.2 Applicability of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is expressly excluded.
Article 24 – Juridisdiction
All disputes arising from or relating to these Conditions or the Agreement(s) between Azuma and the Customer will be settled exclusively by the Rotterdam District Court.