General Terms and Conditions

General terms and conditions for NAPA Services (2017)

1 GENERAL

1.1 Purpose. This document specifies the general terms for NAPA Services, and is an indispensable enclosure for inclusion with all offers and Agreements for NAPA Services made by Napa Ltd. (hereinafter “Napa”). Through the Agreement, Client is supplied with the software, equipment, services and licence to use NAPA System, delivery scope of which is specified in the Agreement and governed by these General Terms and Conditions. If Client does not agree to all of the terms and conditions of this Agreement, Client may not use the NAPA System.

1.2 Agreement. “Agreement” means (i) a sales agreement executed between Napa and Client including Order Specification and these General Terms and Conditions or (ii) if no sales agreement is executed, Client’s purchase order, excluding any terms and conditions contained therein that are not confirmed in Napa’s Acknowledgement of Order, Order Specification and these General Terms and Conditions. The Agreement constitutes the entire agreement and understanding between Napa and Client concerning the NAPA System. Only by and through the Agreement will the Client be supplied with the NAPA System, and any equipment and services that are specified in the Agreement. Any representation, promise, or other statement concerning features or capabilities of the NAPA System not expressly set forth in the Agreement are not a part of this Agreement or otherwise binding upon Napa. Any modification to this Agreement must be in writing and signed by Napa.

1.3 Order Specification. “Order Specification” means Napa’s offer or another specification prepared by Napa or expressly accepted by Napa.

1.4 Order of Precedence. If any discrepancy exists among the documents that constitute this Agreement, the terms and conditions of the Agreement are valid in the following order of precedence: 1) signed sales agreement or Napa’s acknowledgement of Client’s purchase order; 2) Order Specification; 3) Napa’s General Terms and Conditions; 4) Client’s purchase order excluding any terms and conditions contained therein that are not confirmed in Napa’s acknowledgement of order.

2 SOFTWARE AND SERVICES

2.1 Scope of Licence. Napa grants Client non-exclusive, non-transferable and non-assignable perpetual right to use the NAPA System specified on the Order Specification solely on computer(s) designated for that purpose, or on a temporary basis, on a backup system if the designated computer is inoperative, on board ship(s) owned or operated by Client, and/or on computers in Client’s offices.

2.2 Title. Title to, ownership of and all intellectual property rights (including copyrights, trademarks, patents, trade secrets, know-how and any other intellectual property rights, whether or not capable of registration) in and to the NAPA System, its documentation and any ancillary software provided by Napa shall belong to and shall remain the sole and exclusive property of Napa and/or its licensors. Client shall have no right to copy the software, with the exception of copies necessary for back-up and security. Client may not reverse engineer, decompile, convert, make any attempt to discover the software source code, or create derivative works from the software. Client may make additional copies of the User’s Manual for his own internal use only.

2.3 Operating System. Client may install and use the NAPA System only on the operating system(s) supported by Napa. The software is supplied in object code only. Napa has the right to restrict Client’s licence to designated computers.

2.4 Documentation. A specified number of copies of the User’s Manual will be provided. User’s Manual and other documentation shall be in English.

2.5 Training. Training services included in the scope of supply (if any) shall be specified in the Order Specification. Client undertakes not to allow any unauthorised or untrained personnel to use the NAPA System in making operational decisions. All training services provided by Napa shall be provided in accordance with the Napa General Terms and Conditions Training Services latest version.

2.6 Maintenance. Maintenance services are not included in the scope of supply. Client may purchase optional service and maintenance services from Napa by executing a separate Service Agreement.

2.7 Delivery. Unless otherwise agreed the estimated delivery time of the NAPA System and the equipment is as stated in the Agreement. The scope of the services included in the scope of supply (if any) is specified in the Agreement. Before the delivery of the services Client shall provide, at its own cost, Napa with correct and sufficient data and other information on ship characteristic data, ship to shore communication systems, ship LAN and applicable signal or interface formats and protocols in accordance with Napa’s written instructions and within the deadlines set by Napa. The Delivery Time begins when Order has been accepted by Napa and all required data has been received and confirmed correct and sufficient. Shipping time is excluded from the delivery time. Before the services delivery date Client shall prepare, at its own cost, the installation environment in accordance with the written instructions of Napa. The time of the ship attendance must be scheduled in advance between the parties and it shall be approved by the authorized bridge officer onboard the vessel. Customer’s contact person shall send proposed schedule to Napa by email to customer.service@napa.fi. Napa undertakes to confirm or reject the proposed schedule without undue delay during its normal support hours. The schedule of the ship attendance is considered confirmed as soon as mutually agreed by both parties and Napa has received a binding order of the service. Client’s failure or delay to prepare the installation environment or provide correct and sufficient data and information as requested by Napa in writing, shall relieve Napa from any liability for resulting delays or errors in delivery and Napa shall be entitled to (i) postpone those parts of its performance that cannot be started until Client has provided missing data or information or prepared the installation environment; (ii) charge for the time Napa’s personnel is waiting on-site; (iii) charge Client for any extra work performed by Napa; (iv) charge Client for any additional travel costs due to rescheduling of the delivery; and (v) charge an additional fee of 100% off the applicable daily service rates for any overtime work that Napa’s personnel undertakes in an effort to mitigate risk of delay in delivery due to Client’s delay.

2.8 Cancellation and Rescheduling. If a confirmed order is rescheduled on less than two (2) working days’ notice, a charge limited to eight (8) hours normal time rate will apply. For local ports within the range of 200 km, the charge is limited to four (4) hours on less than one (1) days’ rescheduling notice. If a confirmed order is cancelled on less than two (2) working days’ notice, a charge equal to eight (8) hours normal time rate will apply. For local ports within the range of 200 km, the charge is four (4) hours on less than one (1) days’ rescheduling notice.

2.9 Acceptance. The delivery is considered to be accepted by Client (i) once the software, documentation and the equipment, if any have been delivered to the Client in accordance with the agreed Incoterms ® (2010) or (ii) if Napa is responsible for the installation work, once the system has been installed and tested, in accordance with Napa’s standard test procedure. Delivery of a NAPA Loading Computer shall always be considered accepted at latest on the date when the classification society has given its preliminary or final acceptance of the delivered loading computer system, if such acceptance allows commencement of the use of the ship; or on the date when the ship has been delivered to the end customer, whichever occurs first. Client undertakes to sign the Notice of Receipt, confirming his acceptance upon the completion of delivery. The Notice of Receipt shall identify the computer on which the NAPA System has been installed. If Client fails or refuses to sign the Notice of Receipt, its continued use of the NAPA System shall be considered an unauthorized act.

2.10 Classification of the NAPA Loading Computer. Unless otherwise agreed in the Agreement, the fees payable to any classification society shall be borne by Client. If the parties have agreed in the Agreement that the delivery of the NAPA Loading Computer shall include work targeted to applying for approval and certification for the loading computer system from a named classification society, quoted fixed fees for the delivery (NAPA Classification Support Service) shall include only preparation and submission of one set of data for preliminary test conditions and one set of data for final test conditions. Napa may charge Client for the additional work and costs if the approval and certification process requires preparation and submission of additional rounds of test conditions to the classification society due to errors or deficiencies in the data provided by Client.

2.11 Client responsibilities. In order to allow Napa to perform the vessel attendance, the time schedule must be clearly informed and the Client is responsible for possible waiting hours as outlined in these General Terms and Conditions. The Client shall appoint a named contact person for coordination of service related issues onboard the vessel. The Client’s IT contact person and electrical engineer onboard the vessel shall also be available for Napa for the whole duration of the ship visit.

3 PAYMENTS

3.1 Payment Terms. Unless otherwise agreed in the Agreement Client shall pay all fees in full upon completion of the delivery of the equipment or the delivery of the installation media and licence key for NAPA System, whichever is earlier. Additional services, if any, will be invoiced upon order date. The payments shall be made in Euro against invoice, 30 days net from the date of invoice. Interest on overdue payments is 10 % per annum. In case Client delays in making any payment Napa may charge Client for invoice reminder letters in accordance with Napa’s services price list and charge for all debt collection costs incurred by Napa. Napa shall have the right to postpone the fulfilment of its own obligation until payment is made. If Client fails to pay after Napa’s invoice reminder, Napa shall have also the right to terminate the Agreement.

3.2 Taxes and Duties. All prices are exclusive of, and Client is responsible for, all fees and taxes, including customs duties, importation fees, sales, use, withholding, gross revenue and like taxes, dues and charges and all other mandatory payments to government agencies of whatever kind imposed with respect to products or services provided by Napa under this Agreement or with respect to transactions under this Agreement, except taxes imposed on the net income of Napa in the Republic of Finland. In the event that any non-refundable withholding or similar tax(es) are due in respect of any payments under this Agreement, the amount of such payments shall be grossed up so that Napa shall receive the agreed contract value without any deductions. In the event that the Client is legally required to make any deductions on any invoiced amount under this Agreement, the Client shall provide a written clarification of the amount and legal basis of such deduction, after which the parties shall agree upon adjustments to the agreed prices. In case any deductions are made to the invoiced amounts the Client shall provide Napa with original withholding tax or similar tax certificate with English translation corresponding to the difference between the invoiced amount and the paid amount.

3.3 Delivery Terms. All delivery terms appearing in any offer or Agreement shall be interpreted in accordance with Incoterms ® 2010. If the trade term is not specified in the Agreement, the delivery term shall be FCA (Tammasaarenkatu 3, Helsinki, Finland).

4 RESPONSIBILITIES

4.1 Warranty. Napa provides warranty to the delivered new version of NAPA Software “as is” and in accordance with these General Terms and Conditions. Napa undertakes to repair or replace at no cost and at Napa’s sole choice, the only exception being travel costs incurred by Napa, if the error diagnosis and correction cannot be performed remotely from Napa’s offices, and without undue delay all such defects and errors in the equipment and NAPA for Operations system reported in writing by Client to the supplier during the warranty period. The warranty period shall be twelve (12) months from the acceptance as specified in clause 2.9. The warranty period in respect of hardware or part of it that has been repaired or returned under warranty shall expire six (6) months following the date when (i) the repaired or returned hardware is placed in service or (ii) upon expiration of the warranty period applicable to the originally supplied hardware, whichever occurs earlier. An error shall mean that the delivered system does not operate in accordance with the Order Specification and User’s Manual. This warranty is only valid when the NAPA System is run on the designated computer, and under the operating system, approved by Napa. This warranty also covers that equipment supplied by Napa is free from defects in materials and workmanship under normal use. Warranty does not cover repair of errors caused by (i) use contrary to the Agreement; (ii) a product, equipment or software not supplied by Napa; (iii) alteration, change or correction made by Client or third party; (iv) normal wear and tear of the equipment or the repair of a defect or error attributable to external factors (such as accident, fluctuation of electricity or air conditioning, damage caused by thunder, fire or water) or misuse of the equipment or negligence or failure to follow the instructions for use, maintenance or cleaning of the equipment. If it is established that that correction of the error reported by Client is not covered by the warranty, Napa may charge for diagnosis, location and correction of the error in accordance with its services price list. If the equipment needs to be returned to Napa, Client shall provide reasonable assistance as requested by Napa.
THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE BY NAPA AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.2 Liability. Except as otherwise set forth herein, Napa’s liability is limited to the undertakings mentioned in clause 4.1, and does not cover liability for damages that Client may incur directly or indirectly, nor does it cover claims made by a third party, regardless of whether the damage originates in a software error, in unsuitability or unprofitability of the software or any other circumstances. Use of all material supplied under the Agreement by Napa, and all consequences arising therefrom, are the sole responsibility of Client.
IN NO EVENT SHALL NAPA OR ITS LICENSORS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR LOST PROFITS, LOSS OF GOODWILL, OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT OF THE AGREEMENT, OR USE OF THE NAPA SYSTEM.
Client shall be responsible for acquainting himself with, and for acting in accordance with, the restrictions and warnings specified in the User’s Manual and in the online instructions given by the NAPA System. All consequences arising from failure to act accordingly are the sole responsibility of Client.
Client acknowledges being aware that the actual situation, e.g. regarding water fillings in the event of a damaged ship, may differ from that fed into NAPA System: Client is responsible for exercising caution and consideration in interpreting the calculation results.
In general, the NAPA System shall be considered as a supplement to the ship’s official stability documents delivered by the ship’s builder.

4.3 Indemnification. Except as otherwise set forth herein, under no circumstances will Napa or its licensors be liable for any damages of any kind claimed by third parties. Client agrees to indemnify, defend and hold Napa, its licensors, and their directors, officers, employees and agents (the “Indemnified Persons”) harmless from and against all losses, expenses or damages of any kind that the Indemnified Persons incur arising out of, or in connection with, such a third-party claim. Client agrees to obtain, and to keep in force at all times during which the NAPA System may be in use, general liability insurance, including product liability coverage, that is sufficient to cover Client’s obligations as specified here in clause 4.3. Upon request, Client shall provide Napa with evidence of such insurance coverage.

4.4 Services. Client agrees that those employees and consultants of Napa who perform installation of and training on the NAPA System on Client’s premises are not under the direction, supervision or control of Client. None of the employees or consultants of Napa shall be considered employees of Client for any purpose whatsoever.

5 ADDITIONAL TERMS

5.1 Late delivery. Should delivery of the NAPA System be delayed due to reasons solely attributable to Napa and not in a force majeure situation, Napa shall pay liquidated damages of 0.5% of the purchase price for each full week of delay, starting two (2) weeks after the delivery date originally laid down in the Agreement. The total amount of the liquidated damages shall not exceed 10% of the purchase price of the delivery. If the delay exceeds six (6) months, Client has the right to cancel the Agreement, whereby any payments already made will be refunded to the respective parties, along with interest at the rate of 16% per year, and any materials provided by either party to the other party shall be returned to the party who provided the material. This remedy is in lieu of any other provided by law.

5.2 Confidentiality. Client undertakes not to permit a third party to have access to or to use the material Client receives from Napa under the licence without Napa’s prior written consent. Client shall hold Napa harmless, shall defend and indemnify Napa from and against any losses, costs and damages arising out of or in connection with Client’s failure to comply with the requirements of this clause. Napa may use measures to restrict the NAPA System to only those computers which are designated for the purpose in the Notice of Receipt.

5.3 IPR Indemnity. If anyone claims the equipment or the NAPA System infringes their European Union patent, copyright, trade secret or other proprietary right, Napa will indemnify and hold Client harmless from any damages, judgments or settlements (including costs and reasonable attorney’s fees) resulting from the claim if Client promptly notifies Napa in writing of the claim and permits Napa to elect to take over the defence of the action. Napa takes over the defence, it may select the counsel and have the sole right to defend or settle the matter. Napa may substitute comparable non-infringing equipment or software, or modify the equipment or software (which still must meet the specification) to make it non-infringing, or obtain a right for the Client to continue using the equipment or software (all at Napa’s expense), or, if the above are impractical and its continued use is enjoined, buy the equipment or software back from the Client for the original purchase price less a value corresponding time when Client has used the equipment or software. This indemnification does not apply to claims resulting from any use in breach of the Agreement, Client or third party modifications to the equipment or software or use with other devices added by the Client or a third party.

5.4 Transfer of the Licence. Client shall not be entitled to assign or transfer the rights and obligations laid down in this Agreement, either wholly or partly, to any third party without written consent from Napa. Notwithstanding the above, if the Client has purchased the licence during the ship building on behalf of the intended end Client, Client may transfer this licence to the intended end Client upon the delivery of the ship.

5.5 Termination. Each party shall have the right to terminate the Agreement with immediate effects if the other party is in material breach of the Agreement and fails to remedy that breach within 30 days after receiving written notice requiring it to remedy the breach. If Client terminates the Agreement without cause, cancellation fees apply a covering all costs and expenses incurred until the termination notice is received by Napa. Upon termination, Client may no longer use the NAPA System, and upon Napa’s demand, shall at its own cost and expense return to Napa or delete all copies of NAPA System and all other materials received from Napa in its possession.

5.6 Force Majeure. Neither party shall have any liability to the other on account of any loss, damage or delay occasioned or caused by non-performance of any obligation under this Agreement arising from any act or omission on the part of the other party due to strikes or other labour disputes, riots, fire, insurrection, war, the elements, embargos, failure of carriers, shortage of power, currency restrictions, inability to obtain material or transport facilities, compliance with any law or regulations, or other causes beyond the control of the party failing to perform, whether similar or dissimilar to the foregoing, as well as loss, damage or delay in deliveries from sub-contractors caused by any of the above-mentioned circumstances.
On the first clear sign of a force majeure situation, the parties shall, without delay, inform each other of the beginning and, correspondingly, of the end of such force majeure circumstances.

5.7 Export Compliance. Client shall not export, re-export, or otherwise transmit, directly or indirectly, any, know-how, equipment or software except in full compliance with all applicable EU and U.S. export control laws and regulations. These obligations shall survive the termination of the Agreement.

5.8 Governing law and Disputes. The Agreement will be governed by the substantive laws of Finland, with the exception of any conflict of law principles. The parties shall endeavour to settle disputes arising under this Agreement in a reasonable and friendly spirit in mutual negotiations. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, that the parties are unable to settle in mutual negotiation, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The seat of arbitration shall be Helsinki, Finland and the language of arbitration shall be English.

5.9 Severability. Should any provision of the Agreement be declared unen-forceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect to the fullest extent per-mitted by law. The parties shall attempt through negotiation in good faith to replace the unenforceable provision with such provisions that correspond as closely as possible to the original intention of the parties.

5.10 Non-Waiver. A failure by either party to enforce any provision of the Agreement will not be deemed to constitute a present or future waiver of such provision. All waivers must be made in writing.

5.11 Entire Agreement and Amendments. The Agreement constitutes the entire agreement and supersedes all previous commitments between the parties in respect of the provision of the obligations under the Agreement. All amendments to the Agreement must be made in writing.