Subject of the Service Agreement. The subject of this Service Agreement is the provision of service, maintenance and repair works precisely described in § 2 of the Service Agreement (hereinafter referred to as the "Services") and paid repair works (hereinafter referred to as the “Paid Services”) with regard to the following RTG Cranes : RTG Crane […], RTG Crane […], RTG Crane […], hereinafter, individually referred to as the “RTG Crane” or collectively referred to as “RTG Cranes”, as delivered under the Agreement concluded by and between the User and the Service Provider on […] (hereinafter referred to as the “Agreement”). All the terms and expressions included in the Agreement shall apply accordingly to this Service Agreement. The Service Provider shall ensure that it has a valid civil liability insurance policy providing coverage in the scope of activities corresponding to the Subject of the Service Agreement for a guarantee sum of not less than the equivalent of 5.000.000 (in words: five million) EUR. The Service Provider shall present a civil liability policy document at each request of the User and is obliged to maintain validity of the civil liability policy on at least equivalent terms throughout the entire validity period of the Service Agreement. In the event of non-performance of the obligation referred to in this section, the Contractor irrevocably authorises the User to conclude an appropriate civil liability agreement at the Service Provider's cost and risk and undertakes to reimburse the costs to the User at its first request within 7 (seven) days. For the purpose of this Service Agreement, the term “working day” refers to all days of the week, including Sundays, 24 (twenty-four) hours a day, except for public legal holidays considered as work-free days in Service Providers country, whereas the term “day” to any calendar day. § 2. Obligations of the Service Provider The Service Provider shall be required to carry out Services and Paid Services in a manner consistent with the guarantee of the Manufacturer and not leading to the loss of rights from this guarantee, which means that the Service Provider undertakes, for the entire duration of this Service Contract, to have adequate authorizations granted by the Manufacturer to perform the maintenance services on terms laid down by the guarantee of the Manufacturer or to use such authorised third party during the implementation of this Service Agreement. The Service Provider shall cover the RTG Cranes used by the User with its services. The "Services" shall be understood as free-of-charge services, provided during the guarantee and warranty period, involving particularly: free-of-charge completion of periodic inspections in accordance with the documentation of the RTG Cranes and the requirements of the Manufacturer of the RTG Cranes, free-of-charge preparation of the RTG Crane for inspections required by T.D.T., free-of-charge repairs consisting of removal of defects (faults, failures etc.) reported by the User, free-of-charge modifications and updates ordered by the Manufacturer of the RTG Cranes. In the case of the Services, the Service Provider shall bear all the costs, including particularly the costs of consumables, lubricants, parts, etc. The Service Provider shall conduct inspections in accordance with the documentation of the RTG Cranes, and the Service Provider shall complete a given inspection within up to 3 (three) working days, starting from the next working day after receiving the notice from the User. The Service Provider shall prepare the RTG Cranes for inspections required by T.D.T., and the Service Provider shall complete a given preparation within up to 3 (three) working days, starting from the next working day after receiving the notice from the User. The Service Provider shall start the repair (both paid and unpaid) within up to 24 (twenty-four) hours from receiving the notice of defects (faults, failures, etc.) from the User. If the notice is received by the Contractor after 16:00 or on a non-working day, the deadline for commencing the repair shall start to run from 8:00 on the next working day. The Service Provider shall complete the repair (paid or unpaid) within up to 3 (three) working days, starting from the next day after receiving the notice from the User. The Services and Paid Services shall be carried out at the premises of the User. In a situation where it is justified by technological reasons, the Services and Paid Services may be carried out outside the User's premises, but this does not change the contractually agreed deadlines for their commencement and completion and any costs related thereto shall be borne by the Service Provider. Unless otherwise decided by the Parties, the Services and Paid Services shall be carried out during normal daily shift of the User and shall be not carried out during planned operation of RTG Crane. § 3.
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Subject of the Service Agreement. The subject of this Service Agreement is the provision of service, maintenance and repair works precisely described in § 2 of the Service Agreement (hereinafter referred to as the "Services") and paid repair works (hereinafter referred to as the “Paid Services”) with regard to the following RTG Cranes : RTG STS Crane […], RTG Crane […], RTG Crane […], hereinafter, individually (hereinafter referred to as the “RTG STS Crane” or collectively referred to as “RTG Cranes”, ) as delivered under the Agreement concluded by and between the User and the Service Provider on […] (hereinafter referred to as the “Agreement”). ) : […] All the terms and expressions included in the Agreement shall apply accordingly to this Service Agreement. The Service Provider shall ensure that it has a valid civil liability insurance policy providing coverage in the scope of activities corresponding to the Subject of the Service Agreement for a guarantee sum of not less than the equivalent of 5.000.000 39.000.000 (in words: five thirty-nine million) EURPLN. The Service Provider shall present a civil liability policy document at each request of the User and is obliged to maintain validity of the civil liability policy on at least equivalent terms throughout the entire validity period of the Service Agreement. In the event of non-performance of the obligation referred to in this section, the Contractor irrevocably authorises the User to conclude an appropriate civil liability agreement at the Service Provider's cost and risk and undertakes to reimburse the costs to the User at its first request within 7 (seven) days. For the purpose of this Service Agreement, the term “working day” refers to all days of the week, including Sundays, 24 (twenty-four) hours a day, except for public legal holidays considered as work-free days in Service Providers country, whereas the term “day” to any calendar day. § 2. Obligations of the Service Provider The Service Provider shall be required to carry out Services and Paid Services in a manner consistent with the guarantee of the Manufacturer and not leading to the loss of rights from this guarantee, which means that the Service Provider undertakes, for the entire duration of this Service Contract, to have adequate authorizations authorisations granted by the Manufacturer to perform the maintenance services on terms laid down by the guarantee of the Manufacturer or to use such authorised third party during the implementation of this Service Agreement. The Service Provider shall cover the RTG Cranes STS crane used by the User with its services. The "Services" shall be understood as free-of-charge services, provided during the guarantee and warranty period, involving particularly: free-of-charge completion of periodic inspections in accordance with the documentation of the RTG Cranes STS crane and the requirements of the Manufacturer of the RTG CranesSTS crane, free-of-charge preparation of the RTG Crane STS crane for inspections required by T.D.T., free-of-charge repairs consisting of removal of defects (faults, failures etc.) reported by the User, free-of-charge modifications and updates ordered by the Manufacturer of the RTG CranesSTS crane. In the case of the Services, the Service Provider shall bear all the costs, including particularly the costs of consumables, lubricants, parts, etc. The Service Provider shall conduct inspections in accordance with the documentation of the RTG CranesSTS crane, and the Service Provider shall complete a given inspection within up to 3 (three) working days, starting from the next working day after receiving the notice from the User. The Service Provider shall prepare the RTG Cranes STS crane for inspections required by T.D.T., and the Service Provider shall complete a given preparation within up to 3 (three) working days, starting from the next working day after receiving the notice from the User. The Service Provider shall start the repair (both paid and unpaid) within up to 24 (twenty-four) hours from receiving the notice of defects (faults, failures, etc.) from the User. If the notice is received by the Contractor after 16:00 or on a non-working day, the deadline for commencing the repair shall start to run from 8:00 on the next working day. The Service Provider shall complete the repair (paid or unpaid) within up to 3 (three) working days, starting from the next day after receiving the notice from the User, subject to the components listed in the Appendix no. 9 to the Agreement (constituting Appendix No 7 to ToR) in which case repair times indicated therein shall apply. The Services and Paid Services shall be carried out at the premises of the User. In a situation where it is justified by technological reasons, the Services and Paid Services may be carried out outside the User's premises, but this does not change the contractually agreed deadlines for their commencement and completion and any costs related thereto shall be borne by the Service Provider. Unless otherwise decided by the Parties, the Services and Paid Services shall be carried out during normal daily shift of the User and shall be not carried out during planned operation of RTG CraneSTS crane. § 33 Obligations of the User The User shall be obliged to inform the Service Provider about upcoming inspections (control and maintenance activities) required by the Manufacturer of the STS crane, as specified in the documentation of the STS crane as well as about upcoming inspections required by T.D.T. The User shall be obliged to report all defects (faults, failures etc.), as well as needs concerning the inspections and maintenance of the STS crane required by the Manufacturer and needs concerning spare parts, directly to the Service Provider. The request for the Service Provider to come to the User (service notice) should be sent by electronic means (e-mail) in the form of an order. It is permitted to accept the notice made over the phone, but it needs to be confirmed in the form of an e-mail within 24 (twenty-four) hours from the notice made over the phone. The contact list for the purposes of such service notices shall be enclosed as Appendix No. 1 do this Service Agreement. The User may appoint a group of maintenance workers to assist during removal of defects and periodic inspections in the course of the validity period of the Service Agreement, so that, after this term, they shall be able to perform those activities by themselves. § 4 Warranty The Service Provider warrants professionalism, timeliness, punctuality and correctness of Services and Paid Services performed by itself. The Service Provider warrants and represents that for the purposes of the Services and Paid Services performed by the Service Provider it shall use original and factory-new spare parts. In the case of urgent emergency notices, it is permitted to use spare parts from outside of the Spare Parts Warehouse of the Manufacturer of the STS crane, but this must be known to and approved in advance by the User. The Service Provider warrants that due fulfillment of its obligations under this Service Agreement shall result that the STS crane will be in operational condition, meet technical parameters as defined in the Agreement, and be ready to be used according to its purpose. The Service Provider shall grant the warranty of 24 (twenty four) months for the completed Services and Paid Services, including the sub-assemblies replaced or repaired during the term of the Service Agreement. The warranty period starts on the day of completion of the Service or Paid Repair, that is after signing the Service or Paid Service completion report by both Parties. § 5 Remuneration of the Service Provider Remuneration for all repairs of the STS crane, ordered by the User as the Paid Services and completed by the Service Provider, as well as spare parts and consumables used to complete such repairs, shall be paid on the basis of VAT invoice with a payment period of 30 (thirty) days counted from the date of receipt of a VAT Invoice duly issued and delivered after signing a report from the completion of the Paid Service. In the case the invoice is issued improperly or has been corrected the date of payment shall run again from the date of receipt of a duly issued VAT invoice. The conditions for the calculation of costs for the services, ordered by the User as paid services and completed during the term of the Service Contract, shall be agreed as follows: Work rates according to the Price List of Paid Services (Appendix No. 2 to the Service Agreement), Spare parts according to the individual trade offers that shall be accepted in advance (before commencement of a repair) by the User, Consumables, such as lubricants and oils, according to the current price list, External services recharged by the Service Provider – without any additional costs arising from such recharging. Before commencement of the Paid Service, the Service Provider shall notify the User about the price of the replacement parts, that are to be used for the Paid Service. The User shall be entitled to refuse the proposed price and provide identical replacement parts on its own account. In such case, the periods set forth in this Service Agreement for such works shall be extended by the time required for the User to deliver the replacement parts to the seat of the User. The User consents to the sending by the Service Provider of VAT invoices, their duplicates or corrections electronically, i.e. by means of an e-mail to the following address : xxxxxx@xxxxxx.xx. This consent applies exclusively to invoices issued in relation to this Service Agreement. The User declares to have the status of a large entrepreneur according to the Act of March 8, 2013 on countering excessive delays in commercial transactions. § 6 Responsibility of the Service Provider The Service Provider shall be not liable for the effects of the Service or Paid Services which have been not performed by the Service Provider or by the third party used by the Service Provider. The Service Provider is not liable for any damages arising out from the use of the STS crane not in accordance with the operation manual or from the use of the STS crane by the operator without qualifications required by the applicable laws to operate the STS crane. In as far as the contractual penalties indicated in § 8 of the Agreement (Appendix No. 7 to ToR) do not apply, during the term of the Service Agreement, the User has the right to charge the Service Provider : each time after the lapse of 3 (three) working days of STS crane downtime, counted from a day following the receipt of a notice of a defect - with a contractual penalty in the amount of 0,02 % of the Price for every commenced day of a downtime of the STS crane but, each time, with regard to the same notice, no more than 5 % of the Price. This contractual penalty shall not apply to downtime caused by the defects of components listed in the Appendix No. 4 to the Agreement; each time after the lapse of repair times listed in Appendix No. 4 to the Agreement, counted from a day following the receipt of a notice of a defect - with a contractual penalty in the amount of 0,02 % of the Price for every commenced day of a downtime of the STS crane but, each time, with regard to the same notice, no more that 5 (five) % of the Price, All contractual penalties provided for in this Service Contract shall be payable to the bank account of the User within 7 (seven) days from the delivery of the call for payment of contractual penalty to the Service Provider. If the value of incurred damage exceeds the amount of penalties provided for in this Service Contract, the User may demand supplementary damages in line with general principles up to the full value of incurred damage, what refers in particular to the necessity to rent a replacement machinery from a third party. The Service Provider represents and warrants that it has obtained all information required for the fulfilment of the Service Agreement on the terms and conditions set forth hereunder, it has thoroughly examined all the potential risks and difficulties which may occur in relation to the due fulfilment of the Service Agreement, it has taken into account potential impact of the circumstances related to COVID-19 on due performance of the Service Agreement and having due regard to its representations and warranties commits itself to fulfil the Agreement on the conditions set forth herein assuming full responsibility in this respect. § 7.
Appears in 1 contract
Samples: Umowa
Subject of the Service Agreement. The subject of this Service Agreement is the provision of service, maintenance and repair works precisely described in § 2 of the Service Agreement (hereinafter referred to as the "Services") and paid repair works (hereinafter referred to as the “Paid Services”) with regard to the following RTG Cranes : RTG Crane […], RTG Crane […], RTG Crane […], hereinafter, individually STS crane (hereinafter referred to as the “RTG Crane” or collectively referred to as “RTG CranesSTS crane”, ) as delivered under the Agreement No. […] concluded by and between the User and the Service Provider on […] ](hereinafter referred to as the “Agreement”). ) : […] All the terms and expressions included in the Agreement shall apply accordingly to this Service Agreement. The Service Provider shall ensure that it has a valid civil liability insurance policy providing coverage in the scope of activities corresponding to the Subject of the Service Agreement for a guarantee sum of not less than the equivalent of 5.000.000 8.000.000,00 (in words: five eight million) EUR. The Service Provider shall present a civil liability policy document at each request of the User and is obliged to maintain validity of the civil liability policy on at least equivalent terms throughout the entire validity period of the Service Agreement. In the event of non-performance of the obligation referred to in this section, the Contractor irrevocably authorises the User to conclude an appropriate civil liability agreement at the Service Provider's cost and risk and undertakes to reimburse the costs to the User at its first request within 7 (seven) days. For the purpose of this Service Agreement, the term “working day” refers to all shall mean any calendar day except as provided for in the Act of 18 January 1951 on non-working days (Journal of the week, including Sundays, 24 (twenty-fourLaws 1951 No. 4 point 28) hours a day, except for public legal holidays considered as work-free days in Service Providers countryand Saturdays, whereas the term “day” to shall mean any calendar day. § 2. Obligations of the Service Provider The Service Provider shall be required to carry out Services and Paid Services in a manner consistent with the guarantee of the Manufacturer and not leading to the loss of rights from this guarantee, which means that the Service Provider undertakes, for the entire duration of this Service Contract, to have adequate authorizations authorisations granted by the Manufacturer to perform the maintenance services on terms laid down by the guarantee of the Manufacturer or to use such authorised third party during the implementation of this Service Agreement. The Service Provider shall cover the RTG Cranes STS crane used by the User with its services. The "Services" shall be understood as free-of-charge services, provided during the guarantee and warranty period, involving particularly: free-of-charge completion of periodic inspections in accordance with the documentation of the RTG Cranes STS crane and the requirements of the Manufacturer of the RTG CranesSTS crane, free-of-charge preparation of the RTG Crane STS crane for inspections required by T.D.T., free-of-charge repairs consisting of removal of defects (faults, failures etc.) reported by the User, free-of-charge modifications and updates ordered by the Manufacturer of the RTG CranesSTS crane. In the case of the Services, the Service Provider shall bear all the costs, including particularly the costs of consumables, lubricants, parts, etc. The Service Provider shall conduct inspections in accordance with the documentation of the RTG CranesSTS crane, and the Service Provider shall complete a given inspection within up to 3 (three) working days, starting from the next working day after receiving the notice from the User. The Service Provider shall prepare the RTG Cranes STS crane for inspections required by T.D.T., and the Service Provider shall complete a given preparation within up to 3 (three) working days, starting from the next working day after receiving the notice from the User. The Service Provider shall start the repair (both paid and unpaid) within up to 24 (twenty-four) hours from receiving the notice of defects (faults, failures, etc.) from the User. If the notice is received by the Contractor after 16:00 or on a non-working day, the deadline for commencing the repair shall start to run from 8:00 on the next working day. The Service Provider shall complete the repair (paid or unpaid) within up to 3 (three) working days, starting from the next day after receiving the notice from the User, subject to the components listed in the Appendix No. 9 to the Agreement (constituting Appendix No. […] to ToR) in which case repair times indicated therein shall apply. The Services and Paid Services shall be carried out at the premises of the User. In a situation where it is justified by technological reasons, the Services and Paid Services may be carried out outside the User's premises, but this does not change the contractually agreed deadlines for their commencement and completion and any costs related thereto shall be borne by the Service Provider. Unless otherwise decided by the Parties, the Services and Paid Services shall be carried out during normal daily shift of the User and shall be not carried out during planned operation of RTG CraneSTS crane. § 33 Obligations of the User The User shall be obliged to inform the Service Provider about upcoming inspections (control and maintenance activities) required by the Manufacturer of the STS crane, as specified in the documentation of the STS crane as well as about upcoming inspections required by T.D.T. The User shall be obliged to report all defects (faults, failures etc.), as well as needs concerning the inspections and maintenance of the STS crane required by the Manufacturer and needs concerning spare parts, directly to the Service Provider. The request for the Service Provider to come to the User (service notice) should be sent by electronic means (e-mail) in the form of an order. It is permitted to accept the notice made over the phone, but it needs to be confirmed in the form of an e-mail within 24 (twenty-four) hours from the notice made over the phone. The contact list for the purposes of such service notices shall be enclosed as Appendix No. 1 do this Service Agreement. The User may appoint a group of maintenance workers to assist during removal of defects and periodic inspections in the course of the validity period of the Service Agreement, so that, after this term, they shall be able to perform those activities by themselves. § 4 Warranty The Service Provider warrants professionalism, timeliness, punctuality and correctness of Services and Paid Services performed by itself. The Service Provider warrants and represents that for the purposes of the Services and Paid Services performed by the Service Provider it shall use original and factory-new spare parts. In the case of urgent emergency notices, it is permitted to use spare parts from outside of the Spare Parts Warehouse of the Manufacturer of the STS crane, but this must be known to and approved in advance by the User. The Service Provider warrants that due fulfillment of its obligations under this Service Agreement shall result that the STS crane will be in operational condition, meet technical parameters as defined in the Agreement, and be ready to be used according to its purpose. The Service Provider shall grant the warranty of 24 (twenty four) months for the completed Services and Paid Services, including the sub-assemblies replaced or repaired during the term of the Service Agreement. The warranty period starts on the day of completion of the Service or Paid Repair, that is after signing the Service or Paid Service completion report by both Parties. § 5 Remuneration of the Service Provider Remuneration for all repairs of the STS crane, ordered by the User as the Paid Services and completed by the Service Provider, as well as spare parts and consumables used to complete such repairs, shall be paid on the basis of VAT invoice with a payment period of 30 (thirty) days counted from the date of receipt of a VAT Invoice duly issued and delivered after signing a report from the completion of the Paid Service. In the case the invoice is issued improperly or has been corrected the date of payment shall run again from the date of receipt of a duly issued VAT invoice. The conditions for the calculation of costs for the services, ordered by the User as paid services and completed during the term of the Service Contract, shall be agreed as follows: Work rates according to the Price List of Paid Services (Appendix No. 2 to the Service Agreement), Spare parts according to the individual trade offers that shall be accepted in advance (before commencement of a repair) by the User, Consumables, such as lubricants and oils, according to the current price list, External services recharged by the Service Provider – without any additional costs arising from such recharging. Before commencement of the Paid Service, the Service Provider shall notify the User about the price of the replacement parts, that are to be used for the Paid Service. The User shall be entitled to refuse the proposed price and provide identical replacement parts on its own account. In such case, the periods set forth in this Service Agreement for such works shall be extended by the time required for the User to deliver the replacement parts to the seat of the User. The User consents to the sending by the Service Provider of VAT invoices, their duplicates or corrections electronically, i.e. by means of an e-mail to the following address : xxxxxx@xxxxxx.xx. This consent applies exclusively to invoices issued in relation to this Service Agreement. The User declares to have the status of a large entrepreneur according to the Act of March 8, 2013 on countering excessive delays in commercial transactions. § 6 Responsibility of the Service Provider The Service Provider shall be not liable for the effects of the Service or Paid Services which have been not performed by the Service Provider or by the third party used by the Service Provider. The Service Provider is not liable for any damages arising out from the use of the STS crane not in accordance with the operation manual or from the use of the STS crane by the operator without qualifications required by the applicable laws to operate the STS crane. In as far as the contractual penalties indicated in § 8 of the Agreement (Appendix No. […] to ToR) do not apply, during the term of the Service Agreement, the User has the right to charge the Service Provider : each time after the lapse of 3 (three) working days of STS crane downtime, counted from a day following the receipt of a notice of a defect - with a contractual penalty in the amount of 0,02 % of the Price for every commenced day of a downtime of the STS crane but, each time, with regard to the same notice, no more than 5 % of the Price. This contractual penalty shall not apply to downtime caused by the defects of components listed in the Appendix No. 9 to the Agreement; each time after the lapse of repair times listed in Appendix No. 9 to the Agreement, counted from a day following the receipt of a notice of a defect - with a contractual penalty in the amount of 0,02 % of the Price for every commenced day of a downtime of the STS crane but, each time, with regard to the same notice, no more that 5 (five) % of the Price, All contractual penalties provided for in this Service Contract shall be payable to the bank account of the User within 7 (seven) days from the delivery of the call for payment of contractual penalty to the Service Provider. The total maximum amount of contractual penalties which may be claimed under the Service Agreement amounts to 10 % of the Price under the Agreement. If the value of incurred damage exceeds the amount of penalties provided for in this Service Agreement, the User may demand supplementary damages in line with general principles up to the full value of incurred damage, what refers in particular to the necessity to rent a replacement machinery from a third party. The Service Provider shall not be liable to the User for the loss of profits. The Service Provider represents and warrants that it has obtained all information required for the fulfilment of the Service Agreement on the terms and conditions set forth hereunder, it has thoroughly examined all the potential risks and difficulties which may occur in relation to the due fulfilment of the Service Agreement and commits itself to fulfil the Agreement on the conditions set forth herein. The preceding sentence does not exclude possible application of § 8 of the Service Agreement. The Service Provider undertakes to perform its obligations under the Service Agreement in accordance with all applicable laws, rules and regulations, including applicable anti-corruption laws. The Service Provider undertakes to perform its duties and obligations under the Service Agreement in accordance with the DB Code of Conduct for Business Partners constituting integral part of the Service Agreement and available for download at: xxxx://xxx.xxxxxxxxxxxx.xxx/xx/xxxxx/xxxxxxxxxx/xxxxxxxxxxxxxxxxx/xxxxxxxxxxxxxxx.xxxx. Violation of applicable criminal law (e.g., anti-corruption law) by the Service Provider (or third parties the Service Provider uses to fulfill its contractual obligations) in connection with the performance of its duties or obligations under the Service Agreement shall be considered a material breach for purposes of this paragraph and shall entitle the User to terminate the Service Agreement for good cause with immediate effect (without notice period). § 7.
Appears in 1 contract
Samples: Umowa