ENTRY INTO FORCE
1. Any Contract signed between the Supplier and the Purchaser will become effective on the date upon which all following conditions are fulfilled:
- a) receipt by the Seller of the written order confirmation;
- b) receipt by the Seller of the advance payment as stipulated in Article 39 of these general conditions;
- c) notification of the opening of the irrevocable letter of credit and its confirmation by Supplier’s bank, if applicable; and
- d) grant by the Purchaser of all information and documents necessary for the performance of the orders.
2. In these general conditions the following terms have the meanings hereunder assigned to them:
“Contract” means the written agreement between the parties concerning delivery and performance of the Works and all appendices, including agreed amendments and additions to the said documents;
“Price” means the payment to be made for the Works;
“Gross Negligence” means an act or omission implying either a failure to pay due regard to serious consequences, which a conscientious contracting party would normally foresee as likely to ensure, or a deliberate disregard of the consequences of such an act or omission;
“Plant” means the machinery, apparatus, materials, articles, documentation, software and other products to be supplied by the Supplier under the Contract;
“Site” means the place where the Plant is to be installed, including as much of the surrounding area as is necessary for unloading, storage and internal transport of the Plant and installation equipment;
“Works” means the Plant, installation of the Plant and any other work to be carried out by the Supplier under the Contract.
DRAWINGS AND TECHNICAL INFORMATION
3. All drawings and technical documents relating to the Works submitted by one party to the other, prior or subsequent to the formation of the Contract, will remain the property of the submitting party.
Drawings, technical documents or other technical information received by one party shall not, without the consent of the other party, be used for any other purpose that that for which they were provided. They may not, without the consent of the submitting party, otherwise be used or copied, reproduced, transmitted or communicated to a third party.
4. The Supplier will, no later than at the date of taking-over, provide free of charge information and drawings which are necessary to permit the Purchaser to commission, operate and maintain the Works. Such information and drawings will be supplied in two copies. The Supplier is obliged to provide manufacturing drawings for the Plant or for spare parts.
TESTS BEFORE SHIPMENT
5. Tests before shipment of the Plant provided for in the Contract will, unless otherwise agreed, be carried out at the place of manufacture during normal working hours.
If the Contract does not specify the technical requirements, the tests will be carried out in accordance with general practice of industry in the country of manufacture.
6. The Supplier will notify the Purchaser in writing of these tests in sufficient time to permit the Purchaser to be represented at the tests. If the Purchaser is not represented, the test report will be sent to the Purchaser and will be accepted as accurate.
7. If the tests show the Plant not to be in accordance with the Contract, the Supplier will without delay remedy any deficiencies in order to ensure that the Plant complies with the Contract. New tests shall then be carried out at the Purchaser’s request, unless the deficiency was insignificant.
8. The Supplier will bear all costs for tests before shipment of the Plant. The Purchaser shall however bear all travelling and living expenses for his representatives in connection with such tests.
PREPARATORY WORK AND WORKING CONDITIONS
9. The Supplier will in good time provide drawings showing the manner in which the Plant is to be installed, together with all information required for preparing suitable foundations, for providing access for the Plant and any necessary equipment to the Site and for making all necessary connections to the Works.
10. The Purchaser will in good time undertake preparatory work to ensure that the conditions necessary for installation of the Plant and for the correct operation of the Works are fulfilled. This shall not apply to preparatory work which according to the Contract is to be performed by the Supplier.
11. The preparatory work referred to in Clause 10 will be carried out by the Purchaser in accordance with the drawings and information provided by the Supplier under Clause 9. In any case the Purchaser will ensure that the foundations are structurally sound. If the Purchaser is responsible for transporting the Plant on the Site, he will ensure that the Plant is on the Site before the agreed date for starting the installation work.
12. If an error or omission in the drawings or information referred to in Clause 9 is discovered by the Supplier or notified to him in writing before expire of the period referred to in Clause 49, the costs of any necessary remedial work shall be borne by the Supplier.
13. The Purchaser shall ensure that:
- a) the Supplier’s personnel are able to start work in accordance with the agreed time schedule and to work during normal working hours;
- b) he has, in good time before installation is started, informed the Supplier in writing of all relevant safety regulations in force at the Site. All the necessary safety and precautionary measures shall have been taken before installation is started and shall be maintained;
- c) he has made available to the Supplier free of charge at the proper time on the Site all necessary cranes, lifting equipment and equipment for transport on the Site, auxiliary tools, machinery, materials and supplies (including fuel, oils, grease and other materials, gas, water, electricity, steam, compressed air, heating, lighting, etc.) as well as the measuring and testing instruments of the Purchaser available on the Site. The Supplier will specify in writing his requirements concerning such cranes, lifting equipment, measuring and testing instruments and equipment for transport on the Site at the latest one (1) month before agreed date for starting the installation work;
- d) he has made available to the Supplier free of charge sufficient offices on the Site, equipped with telephone and access to the Internet;
- e) he has made available to the Supplier free of charge necessary storage facilities, providing protection against theft and deterioration of the Plant, the tools and equipment required for installation and the personal effects of the Supplier’s personnel.
14. Upon the Supplier’s request in good time, the Purchaser will make available to the Supplier, free of charge, such labour and operators as may be specified in the Contract or as may reasonably be required for the purpose of the Contract. The persons made available by the Purchaser under this clause shall provide their own tools. The Supplier will not be liable for such labour provided by the Purchaser or for any acts or omissions of the persons concerned.
15. If the Supplier so requires, the Purchaser will give all necessary assistance required for the import and re-export of the Supplier’s equipment and tools, including assistance with customs formalities. The assistance as such shall be provided free of charge.
16. The Purchaser will give all necessary assistance to ensure that the Supplier’s personnel obtain, in good time, visas and any official entry, exit or work permits and (if necessary) tax certificates required in the Purchaser’s country, as well as access to the Site. The assistance as such shall be provided free of charge.
17. The parties will, no later than when the Supplier gives notice that the Plant is ready for dispatch from the place of manufacture, each appoint a representative in writing to act on their behalf during the work on the Site. The representatives will be present on or near the Site during working hours. Unless otherwise specified in the Contract, the representatives shall be authorized to act in all matters concerning the installation work.
18. If the Purchaser anticipates that he will be unable to fulfill in time his obligations necessary for carrying out installation, including complying with the conditions specified in Clauses 10, 11 and 13-16, he will forthwith notify the Supplier in writing, stating the reason and, if possible, the time when he will be able to carry out his obligations.
19. Without prejudice to the Supplier’s rights under Clause 20, if the Purchaser fails to fulfil, correctly and in time, his obligations necessary for carrying out installation, including to comply with the conditions specified in Clauses 10, 11, 13-16, the following shall apply:
- a) the Supplier may at its own discretion choose to carry out or employ a third party to carry out the Purchaser’s obligations or otherwise take such measures as are appropriate under the circumstances in order to avoid or alleviate the effects of the Purchaser’s default;
- b) the Supplier may suspend in whole or in part his performance of the Contract. He will forthwith notify the Purchaser in writing of such suspension;
- c) if the Plant has not yet been delivered to the Site, the Supplier will arrange for storage of the Plant at the Purchaser’s risk. The Supplier will also, if the Purchaser so requires, insure the Plant.
- d) the Purchaser will pay any part of the Price which, but for the default, would have become due.
20. If taking-over is prevented by the Purchaser’s default as referred to in Clause 19 and this is not due to any such circumstance as mentioned in Clause 63, the Supplier may also by written notice require the Purchaser to remedy his default within a final reasonable period.
If, for any reason which is not attributable to the Supplier, the Purchaser fails to remedy his default within such period, the Supplier may by written notice terminate the Contract in whole or in part. The Supplier will then be entitled to compensation for the loss he suffers by reason of the Purchaser’s default, including any consequential and indirect loss. The compensation will not exceed that part of the Price which is attributable to that part of the Works in respect of which the Contract is terminated.
LOCAL LAWS AND REGULATIONS
21. The Supplier will ensure that the Works are carried out and are in accordance with any laws, regulations and rules which are applicable to the Works. If required by the Supplier, the Purchaser will provide the relevant information on these laws, regulations and rules in writing.
22. The Supplier will carry out any variation work necessary to comply with changes in laws, regulations and rules, referred to in Clause 21, or in their generally accepted interpretation, occurring between the date of submission of the tender and taking-over. The Purchaser will bear the extra costs and other consequences resulting from such changes, including variation work.
PASSING OF RISK
23. The risk of loss of or damage to the Plant will pass to the Purchaser in accordance with the agreed Incoterm®, which shall be construed in accordance with the INCOTERMS® in force at the date of formation of the Contract. If no Incoterm® has been specifically agreed, delivery of the Plant will be Free Carrier (FCA) at the place named by the Supplier.
Any risk of loss of or damage to the Works not covered by the first paragraph of this Clause will pass to the Purchaser on taking-over of the Works.
Any loss of or damage to the Plant and Works after the risk has passed to the Purchaser will be at the risk of the Purchaser, unless such loss or damage results from the Supplier’s negligence.
24. When installation has been completed taking-over tests will, unless otherwise agreed, be carried out to determine whether the Works are required for taking-over according to the Contract.
The Supplier will notify the Purchaser in writing that the Works are ready for taking-over. He will in this notice give a date for taking-over tests, giving the Purchaser sufficient time to prepare for and be presented at these tests.
The Purchaser will bear costs of taking-over tests. The Supplier will however bear all costs relating to his personnel and his other representatives.
25. The Purchaser will provide free of charge any power, lubricants, water, fuel, raw materials and other materials required for the taking-over tests and for final adjustments in preparing for these tests. He will also install free of charge any equipment and provide any labour or other assistance necessary for carrying out the taking-over tests.
26. If, after having been notified in accordance with Clause 24, the Purchaser fails to fulfil his obligations under Clause 25 or otherwise prevents the taking-over tests from being carried out, the tests will be regarded as having been satisfactorily completed at the starting date for taking-over tests stated in the Supplier’s notice.
27. The taking-over tests will be carried out during normal working hours. If the Contract does not specify the technical requirements, the tests will be carried out in accordance with general practice in the industry in the Purchaser’s country.
28. The Supplier will prepare a report of the taking-over tests. This report will be sent to the Purchaser. If the Purchaser has not been represented at the taking-over tests after having been notified in accordance with Clause 24, the test report will be accepted has accurate.
29. If the taking-over tests show the Works not to be in accordance with the Contract, the Supplier will without delay remedy the deficiencies. If the Purchaser so requires in writing without delay, new tests shall be carried out in accordance with Clauses 24-28. This will not apply when the deficiency was insignificant.
30. Taking-over of the Works will be considered to take place:
- a) when the taking-over tests have been satisfactorily completed or are regarded under Clause 26 as having been satisfactorily completed, or
- b) where the parties have agreed not to carry out taking-over tests, when the Purchaser has received a Supplier’s written notice that the Works have been completed, provided that the Works are as required for taking-over according to the Contract.
Minor deficiencies which do not affect the efficiency of the Works shall not prevent taking-over.
The Supplier’s obligation to install the Plant at the Site is fulfilled when the Works are taken over pursuant to this Clause 30, notwithstanding his obligation to remedy any remaining minor deficiencies.
31. The Purchaser is not entitled to use the Works or any part thereof before taking-over. If the Purchaser does so without the Supplier’s written consent, the Works will be deemed to have been taken over. The Supplier is then relieved of his duty to carry out taking-over tests.
32. As soon as the Works have been taken over in accordance with Clause 30 or 31, the period referred to in Clause 49 will start to run. The Purchaser will, at the Supplier’s written request, issue a certificate stating when the Works have been taken over. The Purchaser’s failure to issue a certificate shall not affect taking-over according to Clauses 30 and 31.
33. If the parties, instead of specifying the date for taking-over, have specified a period of time within which taking-over will take place, such period will start to run as soon as the Contract is entered into and all agreed preconditions to be fulfilled by the Purchaser have been satisfied, such as official formalities, payments due at the formation of the Contract and securities.
34. If the Supplier anticipates that he will not be able to fulfil his obligations for taking-over before or at the time for taking-over, he will forthwith notify the Purchaser thereof in writing, stating the reason and, if possible, the time when taking-over can be expected.
35. The Supplier will be entitled to an extension of the time for taking-over if delay occurs:
- a) because of any of the circumstances referred to in Clause 63, or
- b) as a result of variation work under Clause 22, or
- c) as a result of suspension under Clauses 19, 41 or 66, or
- d) by an act or omission on the part of the Purchaser or any other circumstances attributable to the Purchaser.
The extension will be as necessary having regard to all the relevant circumstances. This provision applies regardless of whether the reason of the delay occurs before or after the agreed time for taking-over.
36. If the Works are not completed at the agreed time for taking-over, the Purchaser will be entitled to liquidated damages from the date on which taking-over should have taken place.
The liquidated damages will be payable at a rate of 0.5 per cent of the Price for each week of delay. The liquidated damages will not exceed five per cent (5%) of the Price.
If only part of the Works is delayed, the liquidated damages will be calculated on that part of the Price which is attributable to such part of the Works as cannot in consequence of the delay be used as intended by the Purchaser.
The liquidated damages become due at the Purchaser’s written demand, but not before taking-over has taken place or the Contract is terminated under Clause 37.
The Purchaser shall forfeit his right to liquidated damages if he has not lodged a written claim for such damages within six (6) months after the time when taking-over should have taken place.
37. If the delay is such that the Purchaser is entitled to maximum liquidated damages under Clause 36 and if the Works are still not ready for taking-over, the Purchaser may in writing demand completion of the Works, by registered letter with acknowledgment of receipt. If the registered letter stays without any effects within a one (1) week period, and this is not due to any circumstance which is attributable to the Purchaser, then the Purchaser may by written notice to the Supplier terminate the Contract in respect of such part of the Works as cannot in consequence of the Supplier’s failure be used as intended by the parties.
If the Purchaser terminates the Contract he will be entitled to compensation for the loss he suffers as a result of the Supplier’s delay. The total compensation, including the liquidated damages which are payable under Clause 36, will not exceed fifteen per cent (15%) of that part of the Price which is attributable to the part of the Works in respect of which the Contract is terminated.
38. Liquidated damages under Clause 36 and termination of the Contract with limited compensation under Clause 37 will be the only remedies available to the Purchaser in case of delay on the part of the Supplier. All other claims against the Supplier based on such delay will be executed, except where the Supplier has been guilty of Gross Negligence.
39. Unless otherwise agreed, payment will be made within thirty (30) days after the date of the invoice as follows:
- 40% of the Price at the formation of the Contract,
- 50% when the Supplier notifies the Purchaser that the Plant or the essential part of it is ready for dispatch from the place of manufacture,
- 10% on taking-over.
40. If installation is delayed due to a cause which is attributable to the Purchaser, the Purchaser will compensate the Supplier for any resulting additional costs, including but not limited to:
- a) waiting time and time spent on extra journeys;
- b) costs and extra work resulting from the delay, including removing, securing and setting up installation equipment;
- c) additional costs, including costs as a result of the Supplier having to keep his equipment at the Site for a longer time than expected;
- d) additional costs for journeys and board and lodging for the Supplier’s personnel;
- e) additional financing costs and costs of insurance;
- f) other documented costs incurred by the Supplier as a result of changes in the installation programme.
41. If the Purchaser fails to pay by a stipulated date, the Supplier will be entitled to interest from the day on which payment was due and to compensation for recovery costs without prejudice of any other rights and remedies. The rate of interest shall be as agreed between the parties or otherwise 8 percentage points above the rate of the main refinancing facility of the European Central Bank. The compensation for recovery costs shall be one per cent (1%) of the amount for which interest for late payment becomes due, with a minimum of forty euros (40€).
In case of late payment and in case the Purchaser fails to give an agreed security by the stipulated date the Supplier may, after having notified the Purchaser in writing, suspend his performance of the Contract until he receives payment or, where appropriate, until the Purchaser gives the agreed security. If the Purchaser has not paid the amount due within three (3) months, the Supplier will be entitled to terminate the Contract by written notice to the Purchaser and, in addition to the interest and compensation of recovery costs according to this Clause 41, to claim compensation for the loss he incurs. Such compensation will not exceed the Price.
RETENTION OF TITLE
42. The Plant remains the property of the Supplier until paid for in full, including payment for installation of the Plant. The Purchaser will at the request of the Supplier assist him in taking any measures necessary to protect the Supplier’s title to the Plant.
The retention of title will not affect the passing of risk under Clause 23.
LIABILITY FOR DAMAGE TO PROPERTY BEFORE TAKING-OVER
43. The Supplier will be liable for any damage to the Works which occurs before the risk has passed to the Purchaser. This applies irrespective of the cause of the damage, unless the damage has been caused by the Purchaser or anyone for whom he is responsible in connection with performance of the Contract. If the Supplier is not liable for the damage to the Works in accordance with this Clause, the Purchaser may still require the Supplier to remedy the damage, be it at the Purchaser’s cost.
44. The Supplier will be liable for damage to the Purchaser’s property occurring before taking-over of the Works only if it is proved that such damage was caused by negligence on the part of the Supplier or anyone for whom he is responsible in connection with the performance of the Contract. The Supplier will however under no circumstances be liable for loss of production, loss of profit or any other consequential or indirect loss.
LIABILITY FOR DEFECTS
45. Pursuant to the provisions of Clauses 46-61, the Supplier will remedy any defect or nonconformity (hereinafter the “Defect(s)”) in the Works resulting from faulty design, materials or workmanship.
46. The Supplier will not be liable for Defects arising out of materials provided or a design stipulated or specified by the Purchaser.
47. The Supplier will only be liable for Defects which appear under the conditions of operation provided for in the Contract and under proper use of the Works.
48. The Supplier will not be liable for Defects caused by circumstances which arise after the risk has passed to the Purchaser, e.g. Defects due to faulty maintenance or faulty repair by the Purchaser or to alterations carried out without the Supplier’s written consent. The Supplier will neither be liable for normal wear and tear nor for deterioration.
49. The Supplier’s liability will be limited to Defects in the Works which appear within a period one (1) year from taking-over. If the use of the Works exceeds that which is agreed, this period will be reduced proportionately. If taking-over has been delayed for reasons which are attributable to the Purchaser, the Supplier’s liability for Defects will not, except as stated in Clause 50, be extended beyond eighteen (18) months after delivery of the Plant.
50. When a Defect in a part of the Works has been remedied, the Supplier will be liable for Defects in the repaired or replaced part under the same terms and conditions as those applicable to the original Works for a period of six (6) months. For the remaining parts of the Works the period mentioned in Clause 49 will be extended only by a period equal to the period during which and to the extent that the Works could not be used as a result of the Defect.
51. The Purchaser will without undue delay notify the Supplier in writing of any Defect which appears. Such notice will under no circumstances be given later than two (2) weeks after the expiry of the period given in Clause 49 or the extended period(s) under Clause 50, where applicable. The notice will contain a description of the Defect.
If the Purchaser fails to notify the Supplier in writing of a Defect within the time limits set forth in the first paragraph of this Clause, he will lose his right to have the defect remedied.
Where the Defect is such that it may cause damage, the Purchaser will immediately inform the Supplier in writing. The Purchaser will bear the risk of damage to the Works resulting from his failure so to notify. The Purchaser will take reasonable measures to minimize damage and will in that respect comply with instructions of the Supplier.
52. On receipt of the notice under Clause 51 the Supplier will at its own cost remedy the Defect without undue delay, as stipulated in Clauses 45-61. The time for remedial work will be chosen in order not to interfere unnecessarily with the Purchaser’s activities.
Remedial work will be carried out at the Site, unless the Supplier deems it more appropriate, having regard to the interests of both parties, that the defective part or the Plant is sent to him or a destination specified by him. Where remedial work is carried out at the Site, Clauses 13-16 and 44 will apply correspondingly.
If the Defect can be remedied by replacement or repair of a Defective part and if dismantling and re-installation of the part do not require special knowledge, the Supplier may demand that the Defective part is sent to him or a destination specified by him. In such case the Supplier will have fulfilled his obligations in respect of the Defect when he delivers a duly repaired part or a part in replacement to the Purchaser.
53. The Purchaser will at its own expense provide access to the Works and arrange for any intervention in equipment other than the Works, to the extent that this is necessary to remedy the Defect.
54. Unless otherwise agreed, necessary transport of the Plant or parts thereof to and from the Supplier in connection with the remedying of Defects for which the Supplier is liable will be at the risk and expense of the Supplier. The Purchaser will follow the Supplier’s instructions regarding such transport.
55. Unless otherwise agreed, the Purchaser will bear any additional costs which the Supplier incurs for remedying the Defect caused by the Works being located in a place other than the Site.
56. Defective parts which have been replaced will be made available to the Supplier and will be his property.
57. If the Purchaser has given such notice as mentioned in Clause 51 and no Defect is found for which the Supplier is liable, the Supplier will be entitled to compensation for the costs he incurs as a result of the notice.
58. If the Supplier does not fulfil his obligations under Clause 52, the Purchaser may by written notice, require fulfilment of the Supplier’s obligations. If the written notice stays without any effects within a one (1) week period, the Purchaser may himself undertake or employ a third party to undertake necessary repair work at the risk and expense of the Supplier.
Where successful repair work has been undertaken by the Purchaser or a third party, reimbursement by the Supplier or reasonable costs incurred by the Purchaser will be in full settlement of the Supplier’s liabilities for the said Defect.
59. Where the Defect has not been successfully remedied, as stipulated under Clause 58:
- a) the Purchaser will be entitled to a reduction of the Price in proportion to the reduced value of the Works, provided that under no circumstances will such reduction exceed fifteen per cent (15%) of the Price, or, where the defect is so substantial as to significantly deprive the Purchaser of the benefit of the Contract as regards to the Works or a substantial part of it,
- b) the Purchaser may terminate the Contract by written notice to the Supplier in respect of such part of the Works as cannot in consequence of the Defect be used as intended by the parties. The Purchaser will then be entitled to compensation for his loss, costs and damages up to a maximum of fifteen per cent (15%) of that part of the Price which is attributable to the part of the Works in respect of which the Contract is terminated.
60. Notwithstanding the provisions of Clauses 45-59 the Supplier will not be liable for Defects in any part of the Works for more than one (1) year from the end of the liability period referred to in Clause 49 of from the end of any other liability period agreed upon by the parties.
61. Save as stipulated in Clauses 45-60, the Supplier will not be liable for Defects. This limitation of the Supplier’s liability will not apply if he has been guilty of Gross Negligence.
ALLOCATION OF LIABILITY FOR DAMAGE CAUSED BY THE WORKS
62. The Supplier will not be liable for any damage to property caused by the Works after taking-over and whilst the Works are in the possession of the Purchaser. Nor will the Supplier be liable for any damage to products manufactured by the Purchaser or to products of which the Purchaser’s products form a part.
If the Supplier incurs liability towards any third party for such damage to property as described in the preceding paragraph, the Purchaser will indemnify, defend and hold the Supplier harmless.
If a claim for damage as described in this Clause is lodged by a third party against one of the parties, the latter party will forthwith inform the other part thereof in writing.
The Supplier and the Purchaser will be mutually obliged to let themselves be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Works. The liability between the Supplier and the Purchaser will however be settled in accordance with Clause 69.
This limitation of the Supplier’s liability in the first paragraph of this Clause will not apply where the Supplier has been guilty of Gross Negligence.
63. Either party will be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by Force Majeure, meaning any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties, such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delay in deliveries by sub-contractors caused by any such circumstance referred to in this Clause.
A circumstance referred to in this Clause, whether occurring prior to or after the formation of the Contract, will give a right to suspension only if its effect on the performance of the Contract could not be foreseen at the time of the formation of the Contract.
64. The party claiming to be affected by Force Majeure will notify the other party in writing without delay on the intervention and on the cessation of such circumstance. If a party fails to give such notice, the other party will be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice. If the Force Majeure prevents the Purchaser from fulfilling his obligations, he will compensate the Supplier for expenses incurred in securing and protecting the Works.
65. Regardless of what might otherwise follow from these general conditions, either party shall be entitled to terminate the Contract by written notice to the other party if performance of the Contract is suspended under Clause 63 for more than six (6) months.
66. Notwithstanding other provisions in these general conditions regarding suspension, each party will be entitled to suspend the performance of his obligations under the Contract where it is clear from the circumstances that the other party is not going to perform his obligations. A party suspending his performance of the Contract will forthwith notify the other party thereof in writing.
WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT
67. Concerning equipment within electrical and electronic equipment scope governed by French decree implementing Directive 2012/19/UE of the European Parliament and of the Council of 4 July 2012, unless otherwise stated, management of these waste will be managed according to principles detailed in Supplier’s user guides.
68. The Supplier will not be liable to the Purchaser, its agents, employees, successors and assignees, for any consequential, incidental, punitive or special damage of any kind or nature, including without limitation, for any losses, costs, damages, loss of revenue or profit, incurred or suffered by the Purchaser or any third party as a result of, or arising out, of loss of use of the Works in all or in part or any failure of Supplier in connection with the Contract.
THE TOTAL AND CUMULATIVE LIABILITY OF SUPPLIER, ARISING OUT OR IN CONNECTION WITH THE CONTRACT, WILL NEVER EXCEED SIXTY PERCENT (60%) OF THE CONTRACT PRICE.
The Purchaser waives any claims, legal action or recourse and will hold Supplier and its insurers harmless from any claim, legal action or recourse that might be raised by its own insurers in excess of such amount. The foregoing will not affect the right of the Purchaser to claim for compensation against Supplier with respect to damage that the Purchaser may suffer as a result of Gross Negligence of Supplier.
DISPUTES AND APPLICABLE LAW
69. All disputes arising out of or in connection with the Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. Place of arbitration will be the place of Supplier’s headquarters.
70. The Contract shall be governed by the substantive law of the Supplier’s country.