Unless otherwise agreed in writing, the following General Terms and Conditions shall be effective (hereinafter referred to as the “Terms”) for CSK Group ApS – Torskekaj 1, 6700 Esbjerg, Denmark (hereinafter referred to as CSK), services including spare parts solutions and kit systems, storage of spare parts and equipment, deliveries of box designs, maintenance of spare parts kit systems, preservation programs, warehouse and spare parts logistics, online spare parts database tool, engineering workforce solutions and technical codification and/or other services supplier by CSK to the Customer.
The Customer’s General Conditions of Purchase will not be considered irrespective these are a part of the Customer’s sales documents, including acceptance. This applies whenever the Conditions of Purchase are presented.
2. Offer, Order and Acceptance
CSK’s written offer which does not indicate a period within which acceptance must be given lapses if the acceptance accordingly has not arrived to CSK within 30 days from the date of the offer. Oral offers have to be accepted immediately. CSK’s offers are made subject to the goods, products or services being unsold. CSK’s services or supplies only cover what appears from the order confirmation /invoice. Modifications in or amendments to the original agreement are not binding without written confirmation from CSK. At any time a security for the full amount can be required e.g. in the form of a bankers guarantee – before the services will be commenced.
All prices are in Danish kroner exclusive VAT, freight, customs, taxes and other expenses. If the prices of the offered or agreed delivery or service is changed as a result of the changes in the purchasing prices, commodity prices, exchange rates, freight, customs, taxes, CSK is entitled to change the offered and / or agreed prices towards the Customer. Unless otherwise agreed the price will be Ex Works.
All variable costs are defrayed by the Customer, including crew changes, meals and accommodation, weather downtime, maritime cost, vessels and charter costs, air freight costs, or freight charges and/or transportation to and from the work site.
CSK prices and schedule are based upon unrestricted access at all times in order to perform the work and any changes hereto shall entitle CSK to adjustments in the contract price and time extensions and change to the programme
Unless otherwise agreed expenses for room and board etc. in connection with the performing of services will be refunded by the customer at cost plus a handling charge of 15%.
Unless otherwise agreed in writing payment has to take place according to the payment terms printed on the invoice. If CSK provides any ongoing services CSK is entitled to charge the Customer instalment payments every month.
By late payment a default interest will be charged at the rate of 2 % per month as from the due date. Payment by set-off can not take place if the counterclaim has been disputed. If the Customer does not comply with the terms of payment this will be considered as a material breach which entitles CSK to stop further deliveries or withhold Customers products or Kit boxes and to demand for the immediate payment if any outstanding amount due as well as not due.
5. Termination, cancellation and Modification of the Order
The Customer shall be entitled to terminate any ongoing storage agreement for convenience giving 3 months’ notice, however if CSK are using external storage facilities with a longer term of notice the Customer are only entitled to terminate any ongoing storage agreement for convenience giving the same notice as CSK has towards the owner of the storage facilities. CSK shall be entitled to terminate any ongoing storage agreement for convenience giving 30 days’ notice. CSK shall be entitled to payment in the notice period.
If CSK approves a modification or cancellation of the order the Customer is obliged to pay the expenses in connection with this modification or cancellation. In connection with a cancellation in whole or in part the Customer is obliged to compensate CSK’s loss of profits.
In the event of the unjustified cancellation of the agreement, an unjustified termination or the hindrance of the performance by the Customer, CSK reserves the right to bill the Customer for lump-sum damage compensation in the amount of 30% of the order value, unless the Customer is able to prove that CSK’s loss is significantly lower. CSK reserves the right to assertion of proven higher damage.
6. Products, spare parts and services
The customer shall give CSK access to staff and information to the extent that it is required for performing the services.
Services, products and spare parts including sales and delivery that CSK provides for the customer is performed correctly and in accordance with Danish legislation at time of delivery.
Data contained in white books or product information is binding only to the extent that CSK expressly has made references in writing thereto. CSK is entitled to without notice to make modifications to all product specifications if this can take place without any significant inconvenience for the Customer. Drawings, white books, specifications and the like, which have been submitted by CSK before or after conclusion of the Agreement, shall remain the property of CSK and shall not be disclosed without CSK’s written consent.
If the Customer requests any variations in ordered products, spare parts or services CSK is entitled to perform theses variations but CSK is not obliged to perform variations without a new written agreement including the requested variations accepted by both parties.
7. Delivery and Transportation
If any delivery is relevant for the CSK Services the delivery time and place of delivery is stated on the order confirmation. Delivery terms are otherwise agreed ex-works so that the Customer bears the risks and expenses in connection with the delivery.
The customer shall examine all services and products at time of delivery. If the customer discovers a flaw or defect that the customer wishes to invoke, it should be immediately communicated in writing to CSK. If a flaw or defect that the customer has discovered or should have discovered is not immediately communicated in writing to CSK, it cannot later be invoked.
8. Delivery Time
Delivery times are non-binding, if not confirmed expressly in writing. Any obligation to deliver is subject to the prompt and orderly fulfilment of the obligations of the Customer.
The delivery time is stipulated by CSK in accordance with the conditions which existed at the time when the offer was made and/or concluded. Unless otherwise agreed in writing a postponement of the delivery time by 10 working days will be considered as delivery on time in every respect, so that the Customer for that reason can not exercise a right towards CSK. CSK shall without undue delay notify the Customer about changes in delivery time.
Partial deliveries and invoices are permissible to the extent that this is reasonable for the Customer.
The time of delivery is extended reasonably in case of unforeseeable events, which CSK despite reasonable care and efforts, and by using appropriate means, are not able to avert, irrespective of whether such circumstances occurred at CSK’s company or CSK suppliers. Such unforeseeable events include breakdowns, official interventions, power supply difficulties, transport deficiencies, delay in supply of important raw materials or products, as well as strike and lockout. CSK will inform the ordering party about such impediments immediately.
If a delivery time is explicit confirmed in writing by CSK, CSK is only obliged to pay any direct damages which are proven and documented by the Customer, however the maximum, aggregated, cumulative legal liability for CSK regarding delays cannot exceed DKK 100.000 per year for all delays regarding the same customer in the same calendar year. The Customer cannot exercise other remedies for breach of contract regarding delays.
9. Warranty, Defects and Complaints
CSK guarantees that services/products associated with electronic repairs, are free from significant flaws or defects in the implementation for 2 years after delivery. For electronic parts that are repaired under warranty, the warranty period is 2 years from finalization of the repair, though no more than 2 years from the original delivery.
Upon delivery the Customer shall without undue delay and within 3 days from receipt of the products perform such an examination of the goods or products sold as proper trade practices require. The content of the Kit Boxes are photo-documented and sealed before its shipped to the Customer for which reason the before mentioned do not apply on sealed Kit Boxes, however the Customer shall on delivery perform an examination of the delivery to ensure the delivery is intact and undamaged.
If the Customer wants to invoke a defect the Customer shall without undue delay and within 14 days after the defect has been discovered or should have been discovered give CSK Written Notice specifying the defect. The notice shall contain a description of how the defect manifests itself. Notice of a defect shall be given immediately if there is a reason to believe that the defect may cause damage.
If the Customer has or should have discovered a defect and the Customer fails to make a complaint as stated the Customer shall forfeit his right to make any claim in respect of the defect.
If the Customer has not invoked a defect within 6 months after the delivery date towards CSK, the Customer shall forfeit his right to make any claim in respect of the defect. If the delivery is used more intensely than agreed or used more intensively than it could have been assumed at the closing of the Agreement this period shall be reduced proportionally.
CSK is obliged to remedy any defect due to faulty design, materials or manufacturing in the delivered services or products, including the Kit boxes. At CSK’s choice defects in the services, products or Kit boxes sold shall be remedied, delivered anew or the purchase price of the item sold will be credited the Customer. For the Parts of the delivery which is repaired or replaced CSK assumes the same obligations that apply to the original delivery. For the other parts of the delivery the stated period shall only be extended with that period in which it has not been able to use the delivery due to defects. Notwithstanding the before-mentioned CSK shall have no liability for defects of any part of the delivery for not more than 10 months from the takeover.
Changes or modifications of the good sold without CSK’s consent deprives CSK of all responsibility and liability.
There shall be no warranty of any kind of purchased products or services provided.
CSK’s liability is limited to the defects arising out of the assumed working conditions in the agreement and the proper use of the delivery. CSK is not liable for defects caused by material supplied by the Customer, constructions which are stipulated/specified by the Customer, mistakenly performed preparatory work performed by the Customer and circumstances occurring after the takeover including defects caused by faulty maintenance on the part of the Customer, changes in the delivery performed by the Customer without CSK’s Written Consent, faulty repairs performed by Customer, Customers handling of the products, including any handling or lifts of the kit boxes and normal wear and tear or deterioration.
The Suppler shall have no liability for defects beyond the above. This applies to any loss the defect may cause including loss of profits and any other consequential economic loss. The above limitation in CSK’s liability shall not apply where CSK has been guilty of gross negligence.
If defects occur within the 6 month period, the product and/or equipment have to be returned to CSK. The Customer is obliged to deliver the products and/or equipment to CSK for reparation and shall bear all costs and transportations risks in this regard.
CSK assess the need and cost of repairs, the risk of loss of, or damage to, such Products while at CSK facility, including the transport phase to and from said facility.
CSK’s warranty does not cover flaws or defects that are a result of: (i) standard wear and tear, (ii) usage that is not in accordance with CSK’s instructions, standard practice or for not agreed-upon purposes, (iii) repairs or changes done by anyone other than CSK, or (iv) other circumstances that CSK is not responsible for.
If the customer discovers a flaw or defect that the customer wishes to invoke, the customer shall immediately communicate this in writing to CSK. If a flaw or defect that the customer has discovered or should have discovered is not immediately communicated in writing to CSK, it cannot later be invoked. The customer shall supply CSK with the information about a communicated flaw or defect that CSK asks for.
Within a reasonable timeframe from when CSK has received communication from the customer about a flaw or defect and examined the claim, CSK will notify the customer whether or not the flaw or defect is covered by the warranty.
Within a reasonable timeframe from when CSK has notified the customer about whether or not a flaw or defect is covered by the warranty, CSK will repair the flaw or defect.
If CSK fails to repair a flaw or defect covered by the warranty within a reasonable timeframe from when CSK has notified the customer, for reasons that the customer is not responsible for, and the flaw or defect has not been repaired within a reasonable deadline of at least 30 days, the customer can annul the order(s) affected by the flaw or defect with no warning by communicating this in writing to CSK. The customer has no other rights in connection with flaws or defects in services/products than those explicitly stated in section 9.
The customer is obligated to cover CSK’s expenses in the case of complaints to the extent that the complaints are unwarranted or if they are otherwise a matter of defects that CSK is not liable for or defects that have arisen as a result of incorrect usage.
If CSK finds it is necessary to repair on site, all travel related expenses, including maritime costs, air freight costs, vessels and charter costs or freight charges will be separately invoiced.
If CSK is liable for any missing spare parts in the Kit Boxes – and prerequisite that the spare parts are held in stock – CSK will as soon as possible ship off the missing parts, however all travel related expenses, including maritime costs, air freight costs, vessels and charter costs or freight charges will be separately invoiced.
EXCEPT FOR THE ABOVE MENTIONED A) CSK DOES NOT MAKE, BY VIRTUE OF ANY AGREEMENT OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY COMPONETNS DELIVERED BY CUSTOMER, ANY SERVICES, ANY PREVIOUSLY DEVELOPED MATERIAL, ANY NEWLY DEVELOPED MATERIAL OR ANY OTHER PROJECT DELIVERABLES, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND B) ALL PROJECTS ARE UNDERTAKEN, AND ALL PROJECT SERVICES, PREVIOUSLY DEVELOPED MATERIAL, NEWLY DEVELOPED MATERIAL, AND OTHER PROJECT DELIVERABLES ARE PROVIDED, BY CSK ON AN “AS IS” BASIS.
FOR THE AVOIDANCE OF DOUBT, (A) CSK PROVIDES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY COMPONENTS IN ANY PRODUCTS, AND (B) CUSTOMER, NOT CSK, BEARS ALL RISK OF ANY DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE RELATED TO ANY CLAIM THAT ANY SERVICES, COMPONETS OR ANY SOFTWARE OR OTHER PROJECT DELIVERABLES INFRINGE ANY PATENTS, COPYRIGHTS, OR OTHER PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS.
10. Retention of title
CSK reserves, with the restrictions imposed by mandatory law, the right of ownership to the products sold, until the full purchase price and those in connection with the delivery of the sales object incurred expenses has been paid by the Customer or the agreed security has been provided and until this has taken place the Customer is not entitled to resell the sales object or to dispose of the articles in such a way that conflicts with CSK’s retention of title.
In connection with changes and adjustments of the products however this takes place in such a way that the sales object does not lose its distinctiveness or identity the retention of title is maintained so that it comprises the changed and adjusted object to the value which the product represented without the performed changes and adjustments.
Once the Customer has paid or provided the agreed security for any debt and the retention of title has been passed to the Customer CSK is obliged to confirm this on demand.
11. Engineering Services and the online spare parts database tool
If CSK provides any engineering/consultancy services regarding codification, customized database solutions, preventive maintenance, calculations, analysis or supervising of Customers products, CSK shall be responsible in the performance of the services for exercising the degree of skill and care consistent with customarily accepted professional and technical practices and procedures for Engineers performing the type of services required for the Project. No other standards or warranties, expressed or implied, including warranties of marketability or fitness for a particular purpose apply.
CSK will not be responsible for the acts or omissions of any others, except for its own employees. CSK will not direct or have control over any of Customers property. CSK will not have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction, for work site health or safety precautions or programs, or for any failure of the Customer, or others, to comply with contracts, plans, specifications or laws.
The Customer is obliged to inspect and survey any of the services provided by CSK.
CSK retains all copyrights and other rights in software, programming and the computer tools, etc., included in or used for the development of the online spare parts database tool. CSK’s copyright and other rights include any business methods, processes and special functions in the online spare parts database tool. Any technology, methodology, or technical information learned or developed by CSK will remain its property.
All software, documents, data, calculations and work papers prepared or furnished by CSK are instruments of service and will remain CSK’s property. Software, designs, reports, data, customized database solutions, and other services delivered to or on behalf of the Customer are for the Customers use only for the limited purposes disclosed to CSK and subject to the Customer paying for the services to provide said work product. Any delayed use, use at another site, use on another project, or use by a third party will be at the user’s sole risk and the Customer agrees to indemnify and defend CSK against any liabilities resulting there from.
CSK shall not be liable for any defects caused by information, material or spare parts supplied by Customer or constructions or calculations which are stipulated/specified by Customer.
Subject to these conditions the ABR89 (Almindelige bestemmelser for teknisk rådgivning og bistand) terms and conditions apply for any engineering or consultancy services performed by CSK.
Any and all liability for CSK shall be limited to DKK 100.000 per incident i.e. a series of Serial Defects with the same root cause.
However and regardless of anything stated contrary hereto in the above mentioned the maximum, aggregated, cumulative legal liability for CSK regarding engineering services, shall be limited to DKK 500.000 per year for all incidents occurred in the same and in a given calendar year.
This limitation applies to all injuries, damages, claims, losses, expenses and defense costs, whether based in contract, negligence, strict liability, statutory, trespass, indemnity, misrepresentation or any other theory of liability. No claim will be valid if presented to CSK more than three years after substantial completion of the services or, if shorter, the applicable statute of limitations period.
All claims for consequential damages, punitive damages and/or losses and/or any indirect damages and/or losses what so ever mentioned as but not limited to loss of production, loss of profit, loss of goodwill, loss of turn over, loss of customers, loss of data, loss of third parties, loss of use of assets, loss of use of property, diminution of value of property or goods, delays, cost to obtain replacement samples, loss of contracts, business interruptions or similar or identical consequential and/or indirect losses and any other indirect losses under this are expressly agreed to be excluded from both parties liability. CSK will not be liable to anyone for injuries or deaths of any persons, except to the extent that such liability is covered by insurance.
CSK maintain in effect at all times insurance coverage for engineering services at the limits set forth herein:
|Professional Liability||DKK 500.000||(per occurrence)|
|DKK 1.000.000||(per year for any and all occurrences)|
THE FOREGOING SHALL NOT LIMIT THE INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS SET FORTH IN THIS AGREEMENT.
THE CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE USE OF THE DELIVERABLE, AND ANY RESULTS GENERATED THEREBY. CSK SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT AND ANY WARRANTY IN THIRD PARTY PRODUCTS. ANY WARRANTY FROM CSK, WHETHER GRANTED PURSUANT TO THIS AGREEMENT, OR BY LAW, SHALL BE VOID IF THE DELIVERABLE IS MODIFIED AFTER ACCEPTANCE.
WITH THE EXCEPTION OF LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT THE CUSTOMER AGREES TO HOLD HARMLESS, INDEMNIFY, AND DEFEND CSK AND ITS AFFILIATES AND SUB-CONSULTANTS AND THEIR EMPLOYEES, AGAINST ALL CLAIMS, FINES AND PENALTIES, ATTORNEYS´ FEES AND OTHER COSTS OF SETTLEMENT AND DEFENSE, WHICH CLAIMS, SUITS, FINES, PENALITIES OR COSTS ARISE OUT OF OR ARE RELATED TO CSK´s ENGINEERING WORK OR SERVICES.
12. Limitation of liability regarding Customers property in interaction with CSK Services
CSK performs services involving Customers property, including storage of spare parts and equipment, handling of spare parts solutions and kit systems, deliveries of high-end box designs for Customers property or products, maintenance of spare parts kit systems, preservation programs according to NORSOK Z-006, warehouse and spare parts logistics, online spare parts database tools, technical codification and/or other services supplier by CSK.
The Customer provides CSK with all information of the content – and the relevant spare parts – in the Kit Boxes. CSK shall not be liable for any delays or defects caused by the use of the Kit boxes or the content, or lack of content, including any missing or damage spare parts in the Kit Boxes. Inspections of Customers property or spare parts in the Kit Boxes are only made visually, and none of Customers products or spare parts is tested in operation.
Any recommendations made by CSK regarding the content of the Kit boxes, including any advice to replace or repair any spare parts are non-binding suggestions and without liability.
CSK DOES NOT MAKE, BY VIRTUE OF ANY AGREEMENT OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS, ANY LIABILITY OF ANY KIND WITH RESPECT TO ANY PRESERVATION, OR LACK OF PRESERVATION, MAINTENANCE OR LACK OF MAINTENANCE, SUPERVISION, MONITORING, ANY USE OF THE KIT BOXES, ANY MISSING SPARE PARTS OR WRONGFULL CONTENT OF THE KIT BOXES, ANY USE OF- OR DOWNTIME IN THE ONLINE SPARE PART DATABASE, HANDLING, STORAGING AND WAREHOUSING OF CUSTOMERS PROPERTY OR PRODUCTS OR ANY COMPONENTS OR PRODUCTS OWNED BY CUSTOMER REGARDLESS IF THE GOODS OR PROPERTY IS LOCATED AT CSK FACILITES OR AT CUSTOMERS OR THIRD PARTY FACILITIES ACCORDING TO OR AS A NATURAL PART OF THE AGREEMENT.
FOR THE AVOIDANCE OF DOUBT, (A) CSK IS NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMERS PROPERTY, AND (B) CUSTOMER, NOT CSK, BEARS ALL RISK OF ANY DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE RELATED TO ANY DAMAGE TO CUSTOMERS PROPERTY OR PRODUCTS REGARDLESS OF CUSTOMERS PROPERTY OR PRODUCTS ARE BEIGN STORED OR PLACED AT CSK ´FACILITIES OR AT THE CUSTOMER OR THIRD PARTY.
CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD CSK HARMLESS AGAINST ANY CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, PROCEEDINGS, AWARDS, DAMAGES, LOSSES, FINES, PENALTIES, COSTS, EXPENSES AND LIABILITIES, INCLUDING LITIGATION COSTS AND REASONABLE ATTORNEY’S FEES (“CLAIM(S)”) ARISING OUT OF DEATH, ILLNESS OR INJURY, OR PROPERTY LOSS OR DAMAGE, OR LOSS, DAMAGE OR COST, AS A RESULT OF OR IN CONNECTION WITH CSK´ PRESERVATION, OR LACK OF PRESERVATION, MAINTENANCE OR LACK OF MAINTENANCE, SUPERVISION, MONITORING, ANY USE OF KIT BOXES, ANY USE OF- OR DOWNTIME IN THE ONLINE SPARE PART DATABASE, HANDLING, STORAGING AND WAREHOUSING OF CUSTOMERS PROPERTY OR PRODUCTS OR ANY COMPONENTS OR PRODUCTS OWNED BY CUSTOMER REGARDLESS IF THE GOODS OR PROPERTY IS LOCATED AT CSK FACILITES OR AT CUSTOMERS OR THIRD PARTY FACILITIES ACCORDING TO OR AS A NATURAL PART OF THE AGREEMENT.
Customer shall take out All-Risk insurance covering any and all damages and losses including damage, fire and water damage and theft regardless of cause to Customers property or products, while the products are being handled, stored or warehoused at CSK facility. Customer shall agree to make Subcontractor co-insued on all policy’s and waive all rights to subrogation or recourse against CSK.
If the Customer handles own property or products at the CSK facility, the Customer are obliged to maintain and keep in force adequate general third party liability insurance, including public liability and products liability insurance covering any and all damages to CSK property, products and personnel.
13. General limitation of liability and Indemnifications
Subject to any limitation mentioned above, any and all other contractual liability for CSK shall further be limited to DKK 100.000 per incident of contract breach i.e. a series of Serial Defects with the same root cause or any other individual breach of contract.
However and regardless of anything stated contrary hereto in the above or elsewhere in the contract, the maximum, aggregated, cumulative legal contractual liability for CSK under this Agreement shall be limited to DKK 500.000 per year for all incidents or liability occurred in the same and in a given calendar year.
The above mentioned limitations shall not apply (i) to any damage or loss caused by intentional, willful misconduct or gross negligence on the part of the liable Party, (ii) to the extent any such limitation is prohibited under any mandatory laws.
All claims for consequential damages, punitive damages and/or losses and/or any indirect damages and/or losses what so ever mentioned as but not limited to loss of production, loss of profit, loss of goodwill, loss of turn over, loss of customers, loss of data, loss of third parties, loss of use of assets, loss of contracts, business interruptions or similar or identical consequential and/or indirect losses and any other indirect losses under this are expressly agreed to be excluded from both parties liability under the agreement.
THE FOREGOING SHALL NOT LIMIT THE INDEMNIFICATION, DEFENSE AND HOLD HARMLESS OBLIGATIONS SET FORTH IN THIS AGREEMENT.
SUPPLIER SHALL DEFEND, INDEMNIFY AND HOLD CSK HARMLESS AGAINST ANY CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, PROCEEDINGS, AWARDS, DAMAGES, LOSSES, FINES, PENALTIES, COSTS, EXPENSES AND LIABILITIES, INCLUDING LITIGATION COSTS AND REASONABLE ATTORNEY’S FEES (“CLAIM(S)”) ARISING OUT OF DEATH, ILLNESS OR INJURY, OR PROPERTY LOSS OR DAMAGE, OR LOSS, DAMAGE OR COST, AS A RESULT OF OR IN CONNECTION WITH (I) THE NEGLIGENT ACT OR OMISSION OF CUSTOMER OR ANY OF ITS EMPLOYEES UNDER THE AGREEMENT, (II) CUSTOMER´S (OR ANY OF ITS EMPLOYEES’) BREACH OF CUSTOMERS´S OBLIGATIONS UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION AS A RESULT OF DEFECTS IN ANY PRODUCT(S) OR (III) ANY USE OF CSK PRODUCTS, DELIVERIES, AGENCY SERVICES, ENGINEERING SERVICES, OR ANY OTHER CSK SERVICES ON OFFSHORE INSTALLATIONS AND VESSELS (EXCLUDING WORKS PERFOMED ON SHIPS IN HARBOUR OR SHIPS DOCKED).
THE CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD CSK HARMLESS AGAINST ANY CLAIMS ARISING OUT OF ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT, OR ANY LITIGATION BASED THEREON, WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES (OR PART THEREOF), OR USE THEREOF, EXCEPT TO THE EXTENT THAT SUCH INFRINGEMENT RESULTS SOLELY FROM THE MANUFACTURE OF THE PRODUCTS PURSUANT TO DETAILED PROPRIETARY DESIGNS FURNISHED BY CSK.
14. Force Majeure
Neither Party can be held responsible for non-fulfilment of agreements, provided the non-fulfilling Party proves that this is caused by force majeure.
The following circumstances shall be considered as Force Majeure if they impede the performance of the agreements or makes performance unreasonably onerous and if they occurs after the offer has been made and which are beyond the control of CSK including: industrial disputes (national or local strikes and lockouts), fire, war, rebellions, riots, weather conditions, natural disasters, exchange controls, public seizure, ban on import- and export, interruption of the common communication services including supply of energy, a substantial increase in prices- and/or duties, exchange rate fluctuations, difficulties with production- and delivery, delays from subcontractors which are due to circumstances which CSK cannot be blamed and the occurrence of force majeure and/or hardship among relevant subcontractors.
15. Product liability
CSK is responsible for product liability in regards to delivered products and spare parts to the extent that such liability is due to mandatory legislation. The customer will indemnify CSK to the extent that CSK may incur product liability in addition to this.
Product liability in relation to electronic modules: There may be flaws in the equipment that the module is part of that causes the same flaw as before the repair. For example, flaws in cable/plug, mechanics/hydraulics, sensor, ECU, other modules or testers. These flaws are not the responsibility of CSK. In cases where CSK provides a replacement module, the customer shall have an opportunity to code or recode a replacement module that isn’t new. CSK assumes no responsibility for coding/recoding a replacement module, as this is not part of the service offered by CSK.
Defects in relation to electronic repairs: CSK’s liability only includes defects in the replaced components that appear within 2 years from date of delivery. CSK’s obligation to repair defects is under the condition that the customer proves that the supplied material has defects and as part of this documents that the material has been stored, installed, used and maintained correctly and in accordance with the manufacturer’s instruction. This includes that CSK does not accept any further responsibility for the delivered material, for which reason the customers cannot annul the purchase, demand a proportional discount or compensation, or withhold the purchase price fully or in part. CSK under no circumstances accepts responsibility for counseling, configuration and other planning done by a third party.
Product Liability damages regarding Customers products which have been processed and incorporated in Customers products by CSK shall be limited to DKK 1.000.000 per year for all incidents or liability occurred in the same and in a given calendar year.
CSK has Product Liability on its own products according to the provisions of the Danish Product Liability law. CSK renounces liability for product damages on any other basis. The Product Liability shall be limited to DKK 10.000.000 per year for all incidents or liability occurred in the same and in a given calendar year.
The Customer shall immediately inform CSK if a third party claims product liability towards the Customer. To the extent CSK will be imposed liability against a third party, the Customer is engaged to compensate CSK to the same extent, as CSK’s liability is limited cf. the above-mentioned article.
CSK shall under no circumstances be liable for consequential damages, punitive damages and/or losses and/or any indirect damages and/or losses what so ever mentioned as but not limited to loss of production, loss of profit, loss of goodwill, loss of turn over, loss of customers, loss of data, loss of third parties, loss of use of assets, loss of contracts, business interruptions or similar or identical consequential and/or indirect losses and any other indirect losses.
If CSK should be sued by a third party due to product liability the Customer accepts to be joined as a party during the proceedings or as a sued by the Court or Arbitration Tribunal which hear the case.
The customer shall not transfer, use or allow others to use CSK’s trade secrets or other information of any kind that is not publicly available.
The customer shall not in an improper manner obtain or attempt to obtain knowledge of or control over CSK’s confidential information as described in section 13.1. The customer shall handle and store the information securely in order to avoid other parties inadvertently becoming familiar with it.
The parties’ obligations apply during the parties’ collaboration and with no time limit after the collaboration has ended, regardless of the reason for the collaboration ending.
17. Disputes, Governing Law and Jurisdiction
Disputes between the parties which can not be settled amicably shall be settled by the Court of Esbjerg by use of Danish Law. However Danish private international law which refers to foreign law and the International Sale of Goods Act (CISG) shall not be applicable.
CSK Group ApS, November 2017