1. TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern all deliveries of shore power (the “Service”) by Havnekraft AS, a company duly registered and existing under the laws of Norway, with the organization number 924 867 698 (“Seller”) to customers of the Service (“Buyer”). The Seller and Buyer may also be referred to as a “Party” or collectively as the “Parties” herein.
Buyer shall place orders (hereinafter a “PO”) for delivery of the Service in accordance with the provisions provided at www.havnekraft.com.
NOTHING CONTAINED IN THESE TERMS SHALL BE READ, CONSTRUED OR INTERPRETED AS IF THE SELLER HAS AN OBLIGATION TO FULFILL ANY PO. SELLERS OBLIGATION TO DELIVER THE SERVICE IS CONTINGENT ON THAT THE PARTIES ENTERES INTO A WRITTEN AGREEMENT AFTER THE SELLERS HAS RECEIVED THE PO.
3. PRICES. TERMS OF PAYMENT
The current and valid fixed price of utilizing the Service is specified on the following website: www.havnekraft.com. The Seller is fully intent on providing the Service in accordance the fixed price stated on the aforementioned website. However, in case that the price of power increases and such increase will make it financially onerous for the Seller to deliver the Service at the fixed price, the Seller has the right to either (i) cancel the agreement regarding delivery of the Service without liability or (ii) offer delivery of the Service to the Buyer at an increased price. The Seller shall use its best efforts to notify the Buyer of such circumstances and his decision as early as practically possible. Unless otherwise is agreed to between the Parties, the Seller shall invoice the Buyer when the ship leaves the port. Unless otherwise is agreed to, the Buyer shall pay the Seller such invoiced amount without deduction or set-off within 14 – fourteen – calendar days after the invoice date. In case of late payment, default interest shall be charged at the interest rate of 12 % p.a. from the first business day of default. Accrued interest shall be added to the principal debt on a daily basis, and interest will be payable on the aggregate sum. If Buyer is, in any respect, in breach of any provisions of these Terms, including (but not limited to) its obligation to pay, or if Buyer shall make an assignment for the benefit of its creditors, or in the event of a commencement or threatened commencement of proceedings by or against Buyer involving bankruptcy, insolvency, reorganization or similar arrangement (each a “Default”), Seller may defer further deliveries and suspend its own obligations until the Default is remedied (the “Retention Right”). If a Default gives Seller reasonabl grounds for insecurity in respect of Buyer’s future performance of its obligations, it can demand that the delivery of the Service only will take place on the basis of advance payment. Unless otherwise agreed to, all sums shall be payable in the lawful currency of Norway (NOK).
4. ABOUT COMMISSIONING
Procedures for and the price of commissioning and first call shall be specified in a written agreement between Seller and the Buyer. The Buyer shall be charged the agreed price for commissioning regardless of the outcome. If the Seller and Buyer has entered into an agreement relating to the delivery of the Service and commissioning, and the Buyer, for whatever reason, is unable or unwilling to arrive at Haugesund Port, the Buyer shall be obligated to hold the Seller harmless of any direct costs that the Seller has incurred in relation to the commissioning. The obligation to hold the Seller harmless only applies to cancellations that are given later than 48 hours before the expected arrival time at the port.
5. PAYMENT OF TAXES
Norwegian laws and regulations states that a consumption tax (electricity consumption tax) is payable to the Norwegian state on all power deliveries, including delivery to ships. The electricity consumption tax shall in accordance with said regulations will, in addition to the price for the Service, invoiced in accordance with section 3 above. The Buyer of the Service shall notify the Seller in advance if they are in a position or category that entails, wholly or partially, that they are exempt from payment of electricity consumption tax. In accordance with the Norwegian regulation FOR-2001-12-11-1451 (Forskrift om særavgifter) section 3-12-7, ships engaged in commercial trade pay electricity consumption tax at a reduced rate. The definition of “ships engaged in commercial trade” does not include laid-up ships, ships which have been permanently decommissioned, ships used as accommodation, hotels, offices, workshops or storage facilities, and/or ships undergoing repair, rebuilding or similar work. A self-declaration form shall be submitted to Seller for each ship engaged in commercial trade the first time the Service is used. In the absence of such self-declaration, Seller shall be entitled to charge electricity consumption tax at the full rate. Furthermore, if it becomes clear that a ship which has been charged electricity consumption tax at a reduced or zero rate did not in fact meet the criteria for such a full or partial reduction in the tax rate, the Buyer shall promptly notify Seller and thereafter pay Seller the remaining part of the electricity consumption tax.
Havnekraft AS shall be indemnified against any determination of value added tax (VAT) by the tax authorities if the vessel owner can be held responsible for providing inaccurate or incomplete information in the “First call form for shore power at Havnekraft AS or the VAT Exemption Confirmation form at Havnekraft AS”, and such misrepresentation or omission results in financial loss for Havnekraft AS
6. ABOUT CONNECTION
The Buyer shall, before connecting to the facility and before utilizing the Service, familiarize itself with the Sellers current procedures and instructions for connection and utilizing of the Service.
The Buyer must be aware and accept that the Service will be invoiced in accordance with the measured power drawn from the grid and not the amount of power that enters into the ship. For the avoidance of doubt, this entails that the Buyer accepts and bears the consumption of power loss in the shore power facility utilized to deliver the Service.
8. PROCEDURE IN CASE OF NONCONFORMANCES
If the Buyer becomes aware of nonconformances in the shore power facility before, during or after the use of the Service, the Buyer shall notify the Seller promptly of the non-conformance. If the non-conformance is discovered before the Buyer connects to the facility, the Seller shall be contacted immediately after discovery. The Buyer shall not connect to the facility before the Seller has confirmed that connection is acceptable. The Buyer shall be liable in damages for all losses suffered by Seller as a result of the Buyer connecting to the shore power facility and using the Service without such specific approval as specified in this section 8.
9. WARRANTY AND LIMITATIONS OF REMEDIES:
DISCLAIMER SELLERS’S SOLE AND EXCLUSIVE WARRANTY IS THAT THE SERVICE FULFILL ALL APPLICABLE REGULATORY REQUIREMENTS AND STANDARDS AND THAT SELLER SHALL USE ITS BEST EFFORTS TO DELIVER THE SERVICE TO BUYER. THESE WARRANTIES ARE SELLER’S SOLE WARRANTIES WITH RESPECT TO THE SERVICE AND SELLER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, WHEATHER FOR MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
Notwithstanding the foregoing, Seller is not liable for any malfunctions in any equipment which is used for the purpose of delivering the Service, the lack of necessary capacity/volume of power in the power grid to deliver the Service and unnormal weather conditions. Seller’s sole liability to Buyer and Buyer’s sole and exclusive remedy for non-delivery or a defaulted delivery (norw.: mangelfull levering) is that the obligation to pay for the Service shall not be applicable. This is Buyers sole and exclusive remedy.
UNDER NO CIRCUMSTANCE SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS, INCLUDING (BUT NOT LIMITED TO) LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS OR COST OF PROCURING SUBSTITUTE SERVICES OR ANY OTHER SIMILAR DIRECT OR INDIRECT LOSSES OR COSTS. SELLERS TOTAL AND MAXIMUM LIABILITY SHALL NOT IN ANY EVENT EXCEED NOK 500 000,-.
10. BUYERS LIABILITY
The Buyer shall be liable for direct losses suffered by the Seller because the Buyer has damaged a shore power facility during connection, disconnection or use, provided that the Buyer or any person for whom the Buyer is responsible has acted negligently. In case of gross negligence or willful misconduct, the liability will also include the Sellers indirect losses.
Whenever possible, each provision of the contractual relationship, including (but not limited to) these Terms, shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held to be invalid, illegal, or unenforceable in any respect under Norwegian law, such invalidity, illegality, or unenforceability will not affect any other provision, and the contractual relationship shall be reformed, construed and enforced as is such invalid, illegal or unenforceable provision had never existed.
No waiver by either Party of any of the provisions of the contractual relationship, including (but not limited to) these Terms, or the breach thereof, shall be considered as a waiver of any subsequent breaches, terms or conditions. No waiver shall be valid unless it is put forward in writing. No other conduct whatsoever shall be deemed as a waiver.
Seller reserves the right to amend these Terms with effect for future use of the Service.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given by person, by e-mail, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested).
15. FORCE MAJEURE
The Seller and the Buyer shall not be considered in default hereunder or be liable for any failure to perform or delay in performing any provisions of these Terms in the customary manner to the extent that such failure or delay is caused by any reason beyond its reasonable control due to force majeure or hardship. In these Terms, “Force Majeure” refers to an event which is a hindrance to the performance of a Party`s obligations under the Terms, and which is outside of the nonperforming Party control, which the nonperforming Party could not have foreseen when the contractual relationship was entered into, and which the non-performing Party could not or cannot reasonably be expected to surmount or prevent the effects of. The following shall in all instances be regarded as “Force Majeure”:
– Acts of God;
– terrorist attacks;
– new import restrictions;
– regulatory hindrances
– Lack of available power in the power grid;
– Malfunctions, wholly or fully, in the facility
and equipment needed to deliver the Service;
– Seller being unable to obtain the necessary
crew of employees to deliver the Service;
– or other formal or informal hindrances may
be examples of Force Majure events.
The fact that it has become or will become financially onerous for the Seller to perform according to a Terms due to increased costs (“Hardship”), shall only be regarded as a Force Majeure event if such circumstances have made it noticeably onerous for the Seller to perform.
16. CHOICE OF LAW
The contractual relationship between Seller and Buyer, including (but not limited to) these Terms, shall be governed by and interpreted in accordance with Norwegian Law.
17. DISPUTE RESOLUTION
Any controversy, claim or dispute out of or relating to the contractual relationship (including these Terms), shall be negotiated in good faith between the parties. If the Parties agree, an arbiter or mediation person or entity or panel may be appointed with a mandate to assist the Parties in resolving disputes that has arisen. Costs related to such third-party assistance shall be divided equally between the Parties, unless otherwise agreed to. To the extent the negotiations are not successful, each of the Parties may require the case to be resolved by arbitration according to the Norwegian Arbitration Act of 14.05.2004. Such arbitration proceedings shall take place in Bergen, Norway. The Parties shall jointly agree to and appoint the arbitrators used to settle the dispute. The Parties agree that the arbitration proceedings and the arbitration decision shall not be public.
If none of the Parties demands arbitration proceedings, the exclusive legal venue shall be Haugaland District Court, Norway. Version 1.0, 18.03.2023.