General Terms and Conditions for Sale and Supply
1. General Terms
1.1 These general terms and conditions for sale and supply (“General Terms”) shall apply to all services, including installation, repair, maintenance and surveillance (“Services”) as well as any delivery of main components and spare parts including new, used and refurbished main components and spare parts (“Main Components” and “Spare Parts”), offered and delivered to any customer (“Customer”) by Vento Energy Support ApS, company reg. no. 34 31 05 51 (“Vento”), unless otherwise agreed in writing.
1.2 For the avoidance of doubt these General Terms shall apply to any joint and/or combined delivery of Services, Main Components and/or Spare Parts, i.e. delivery of respectively Services, Main Components and/or Spare Parts will be governed by the relevant provisions applicable hereto. Vento and the Customer are jointly referred to as the “Parties” and separately a “Party”.
1.3 Vento does not accept any conflicting, contrary or additional terms and conditions of the Customer unless Vento expressly confirms acceptance thereof in writing.
2. Placing of Orders
2.1 All orders submitted by the Customer must specify the type and quantity of Services, Main Components and/or Spare Parts requested, delivery place and requested delivery dates. No order is binding for Vento unless and until confirmed by Vento in writing.
2.2 The Customer shall provide any and all technical documentation necessary for Vento to perform the Services or deliver the Main Components or Spare Parts. Further, the Customer shall inform Vento of any and all specific technical norms and other quality standards and/or requirements which the Services, Main Components and/or Spare Parts shall comply with.
2.3 Vento accepts to perform changes to the order confirmation, if and provided that such changes can be carried out by Vento without interfering in any other commitments of Vento. Vento will inform the Customer of any changes in the price and/or delivery schedule due to such change request.
3. Prices and Term of Payment
3.1 Unless otherwise agreed by the Parties, the prices are those set forth in the order confirmation from Vento and the terms of payment are net 14 days from invoice date without offset or deduction. All prices are exclusive of VAT and excluding freight, packaging, import duties, customs charges, tariffs etc. unless otherwise stated.
3.2 Invoices will include separate items on payment for (i) Services, Spare Parts and/or Main Components, (ii) travel and living expenses, (iii) payment for consumables, (iv) environmental fees and/or (v) overtime payment, unless a lump sum price has been agreed.
3.3 Unless otherwise agreed with the Customer, Vento may at any time notify the Customer of price regulation. Unless otherwise agreed such regulation will be effective 3 months from the notice was given by Vento to the end of a month. In the event of a price increase, the Customer may terminate the agreement with Vento with 60 days written notice provided that the Customer issues such termination within 30 days from receipt of the notice of price increase.
3.4 In case of delay of the Customer’s payment, Vento may claim interest at the rate of 1.5 % for every commenced month until payment, in addition to, and not in limitation of, any other rights or remedies to which Vento are or may be entitled at law.
3.5 Vento may require the Customer to submit financial information prior to agreement on payment terms and the Customer is obliged to comply with any such reasonable requests. If the Customer’s financial position has deteriorated in Vento’s opinion, Vento may at its sole discretion change the payment terms and credit limit without notice by requiring cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
3.6 If the Customer does not fulfil its payment obligations Vento may suspend any order or any remaining balance thereof until the payment is made. In addition, Vento may terminate any order or any remaining balance thereof by giving the Customer 3 days’ written notice.
3.7 Vento may at all times set off any of its debt against any debt of the Customer regardless whether the debt has become due or not.
4. Supply of Services
4.1 Delivery of Services will take place in accordance with the order confirmation and in accordance with agreed time schedule. Services are deemed delivered upon completion of the work specified in the order confirmation.
4.2 Vento may at any time use sub-contractors without the prior written consent from the Customer.
4.3 In case the performance of the Services are delayed solely due to Vento’ acts or omissions, the Customer may claim damages from the day on which the delivery should have taken place for documented losses, provided that the Customer asserts such claim within 5 days from the delivery date stated in the order confirmation. If, however, Vento finalizes the Services within 14 days from the notification, the delivery is deemed timely delivery, and the Customer is not entitled to claim damages.
4.4 The Customer’s right to damages in case of the performance of the Services are delayed cannot exceed 15% of the order value. Vento is not liable for losses exceeding the limitations set out above, and the Customer agrees that the limited damages will be the Customer’s only compensation with regard to Vento’s delay of Services, thus Vento is not obliged to reimburse the Customer any costs and expenses to buy-ins or the like which exceed the limitations. Vento is not liable for any indirect or consequential loss etc. (cf. clause 9).
4.5 The Customer understands that changes to the order may result in postponement of the delivery date. Upon such change, the Parties will agree on a new delivery date provided always that any change of the delivery date shall always be confirmed by Vento in an order confirmation to be valid.
4.6 If delay is solely or partly due to the Customer’s default, including the Customer’s failure to perform preparatory work subject to section “Preparation for supply of Services”, the Customer shall reimburse Vento any additional costs incurred by Vento.
4.7 It shall not be regarded as a delay of Vento’s performance if the delay is caused by (i) Customer’s failure, (ii) any delay or failure to give Vento access to the site where the Services are to be performed, (iii) any delay caused due to weather conditions such as rough or adverse weather, hereunder high wind and/or heavy rain, which prevents or delays performance (iv) and/or any failure to obtain necessary permits, consents etc. which are not due to Vento’s failure.
4.8 If Vento has agreed to perform the Services at the Customer’s site, the Customer shall ensure that Vento has access to the site etc. pursuant to section “Preparation for supply of Services”. The Customer shall indemnify Vento for all travelling or transportation costs incurred by Vento in relation to the performance of the Services unless otherwise agreed in writing.
Preparation for supply of Services
4.9 Unless otherwise agreed, the Customer shall carry out any preparatory work necessary for Vento to carry out the Services. Such preparatory work must be carried out at the Customer’s own expense. Furthermore, and unless otherwise agreed, the Customer shall obtain all necessary permits, consents and approvals etc. which are necessary for Vento to perform the Services.
4.10 Vento may immediately suspend the work if the Customer does not carry out the necessary preparatory work for Vento to perform the Services or if the Customer or any circumstance on the part of the Customer otherwise hinder Vento’s performance of the Services, hereunder if the Customer fails to comply with applicable laws and regulations on working environments, safety etc. The Customer shall reimburse Vento for any and all costs and expenses incurred by Vento in this regard.
5. Supply of Main Components and Spare Parts
5.1 Delivery of Main Components and Spare Parts will be EXW Incoterms 2020 unless (i) the Main Components and Spare Parts are installed by Vento in which event the delivery shall be deemed to have taken place upon completion of the installation work, or (ii) otherwise agreed in the order confirmation.
5.2 Delivery dates are Vento’s best estimate, and Vento is not liable for any claims, loss, costs or damages suffered by the Customer due to any delay of Main Components or Spare Parts, and the Customer understands that changes to the order from the Customer may result in postponement of the delivery date. Vento will notify the Customer if Vento becomes aware of circumstances which will cause delay of the delivery.
5.3 If delay is due to the Customer’s default, including if the Customer does not take delivery of the Main Components or Spare Parts upon the agreed delivery time, the Customer shall reimburse Vento any additional costs incurred by Vento including payment of warehouse costs and any costs related to a compulsory sale.
5.4 Vento may at any time use sub-suppliers without the prior written consent from the Customer.
5.5 The Customer understands that Main Components or Spare Parts from Vento can be subject to export control, and delivery of the Main Components or Spare Parts ordered are subject to Vento obtaining necessary export license. In the event Vento cannot obtain export license, Vento is not obliged to fulfil the agreement with the Customer and may rescind the delivery immediately with no liability.
Retention of title
5.6 To the extent the Main Components or Spare Parts have not been installed, the title to the Main Components and Spare Parts remain at Vento until full payment of any and all outstanding accounts is effected by the Customer, unless otherwise stated in the order. If the Customer fails to pay any invoice at the due date, Vento may reclaim the delivered Main Components and/or Spare Parts to cover its claims.
5.7 The Customer shall, provided that the Main Components and/or Spare Parts have not been installed, separate the delivered Main Components and Spare Parts from any other stock of the Customer and keep the delivered Main Components and Spare Parts distinguished marked as property of Vento until full payment of any and all outstanding payments are effected.
5.8 The Customer is at his own expense obliged to insure all Main Components and Spare Parts delivered to their full replacement value until title to the Main Components and Spare Parts has passed to the Customer.
6.1 Vento warrants that the Services performed will be free from defects in workmanship and in accordance with the requirements of the order confirmation and industry practice. Vento further warrants that the Services, comply with the law, regulations and technical standards applicable in Denmark and as set out in the order confirmation.
Main Components (used and/or refurbished)
6.2 Vento warrants that all used and/or refurbished Main Components delivered and/or installed by Vento will conform in all material respects to the specifications or industry practice for such used and/or refurbished Main Components and will be free from material defects in workmanship and material under normal use. Vento further warrants that the used and/or refurbished Main Components delivered by Vento comply with the law and regulations applicable in Denmark and as set out in the order confirmation.
Spare Parts (new, used and/or refurbished)
6.3 Vento warrants that all new, used and/or refurbished Spare Parts delivered and/or installed by Vento will conform in all material respects to the specifications or industry practice for such Spare Parts and will be free from material defects in workmanship and material under normal use. Vento further warrants that such the Spare Parts comply with the law and regulations applicable in Denmark and as set out in the order confirmation.
Main Components (new) or Main Components and/or Spare Parts (refurbished by third party)
6.4 For all New Main Components, the original manufacturer’s warranty will apply and for Main Components and/or Spare Parts refurbished by a third party the third party’s warranty will apply. Thus, Vento does not issue any independent and/or separate warranty and does not undertake any separate liability in this respect towards the Customer.
6.5 The Customer must assert claims towards and in accordance with any such warranty issued by the original manufacturer or third party. The Customer shall notify Vento in a duly form and within a duly period in order for Vento to comply with the manufacturer’s or third party’s specified requirements for Vento to refer any warranty claims. Vento is not liable towards the Customer, if the manufacturer or third party for any reason refuses the Customer’s warranty claims.
7. Notification of defects
7.1 The Customer shall immediately notify Vento if the Customer becomes aware of any defect (or ought to have become aware thereof including if the Customer becomes aware of any circumstances which should indicate to the Customer that there is a defect). If the Customer fails to inform Vento immediately, and in any event within the time limits set out in the General Terms, the Customer forfeits the right to make any claim in respect of the defect. Any notification of defects shall be made in writing and specify the defect.
8. Exclusion of liability
8.1 Vento is not liable for defects (i) caused by faulty maintenance on the part of the Customer, including if maintenance is not carried out in accordance with Vento’s instructions or recommendations or in accordance with recommended intervals, (ii) due to modifications, repair, alteration or services, including installation of main components and spare parts carried out by the Customer or any third party without Vento’s consent or not in accordance with instructions issues by Vento, or (iii) caused by faulty or incorrect information from the Customer.
8.2 Further, Vento is not liable for defects in Main Components or Spare Parts to the extent the defects are due to other installation work carried out by the Customer or any third party. Vento is not liable for the Customer’s failure to comply with the turbine manufacturer’s, main component or spare part manufacturer’s installation and maintenance instructions.
9. Limitation of liability
9.1 Vento’s liability for any claim cannot exceed 15 % of the order value giving rise to such claim irrespective of the nature of the claim, whether in contract (e.g. claims related to delay or defects), tort, by way of indemnity, warranty or otherwise.
9.2 Vento shall in no event be liable for any indirect or consequential loss that was not reasonably foreseeable, including any business interruption costs, loss of profit, loss of production, removal or reinstallation costs including but not limited to cranes and other lifting equipment, re-procurement costs, loss of data, injury to reputation, loss of customers or any indirect, special, incidental, consequential or punitive damages of any nature.
9.3 Vento is not liable for any claims based on Vento’s compliance with the Customer’s own specifications, instructions or technical documents or for the Customer’s use of Main Components or Spare Parts delivered and/or performed by Vento in combination with other components, products and/or services delivered and/or performed by the Customer or any third party.
9.4 It is the Customer’s risk that any specifications, instructions and/or technical documents are correct and complete submitted to Vento in due time for Vento to ensure compliance hereof. The Customer shall indemnify and hold harmless Vento against claims from any third party to the extent the claims are excluded from Vento’s liability towards the Customer under these Terms. The Parties shall notify each other in case a third party makes claims in this regard.
10. Force Majeure
10.1 Vento is not liable for any delay or failure in performance if caused by reasons beyond Vento’s reasonable control, including, but not limited to, acts of war, fire, epidemics, insurrection, strikes, lockouts or other serious labor disputes, delayed deliveries and/or non-deliveries, delayed services and/or non-services from subcontractors, riots, earthquakes, floods, explosions, natural disasters or other acts of nature, embargo, restrictions of any governments or other legal authority which affects its performance, to the extent such circumstances could not been foreseen at the time of formation of the agreement
10.2 Vento’s obligations so excused will be extended on a day-to-day basis for the time period equal to the period of such excusable interruption, provided that Vento relying upon force majeure notifies the Customer hereof immediately. In the event of force majeure continues for more than 3 consecutive months either of the Parties may terminate the agreement upon written notice. The Customer shall upon such termination pay Vento for any work performed up until termination has been effected.
11. Governing law and disputes
11.1 These General Terms and any order issued hereunder, and the work performed by Vento, are governed by Danish law excluding any international private law rules and CISG.
11.2 Any dispute arising must be settled through loyal negotiation between the Parties including negotiations between higher management of both Parties. Disputes, that cannot be settled through the Parties’ negotiation, must be finally settled by arbitration before the Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The arbitration tribunal shall consist of three arbitrators, so that each Party appoints one arbitrator and the Danish Arbitration Institute appoints the chairman. The arbitration must be seated in Herning, Denmark.
11.3 Notwithstanding the foregoing, the obligation to refer a dispute to arbitration shall not restrict a Party from using any intermediary measures such as injunction etc.
11.4 Furthermore, in the event that the dispute arises out of the Customers failure to effect duly payment or the claim is below DKK 1 million, Vento shall at its option be entitled to refer the dispute to the ordinary Danish courts.