1. Use and validity
1.1. The terms of sale and delivery given below are used for any quotation, order and delivery, unless they deviate here from by explicit written agreement.
1.2. Special or general conditions stated by the buyer in his tender material, order, terms of purchase etc. are not regarded as deviation from the terms given below, unless the seller has accepted this in a written agreement.
2.1. Agreements between the buyer and the seller are not regarded as final, until the seller has forwarded an order acknowledgement, or another written acknowledgement including the contents of the agreement. This is regardless of who has taken the initia-tive to enter the agreement and regardless of forwarding of quotation/offer.
2.2. With regard to not stock-holding products the seller is at any time entitled to deliver minor deviations in quantity of max. 10% and minor deviations in colour and surface provided that the product meets conventional standards.
2.3. The seller is at any time entitled to change the product range and/or product workout without prior notice.
3.1. The selling prices are excl. VAT and other taxes/charges in force at the time in question, and excl. packing. If nothing else is stated, all prices are ex works from the seller’s storage room/warehouse in Mørke, Denmark, Incoterms 1990.
3.2. All price-lists are subject to revision without notice. The seller reserves his right to revise prices if any increase in wages, price of material or other costs occur during manufacturing.
3.3. Should the buyer make additions or alterations in the order placed, the seller is entitled to reject these or to cancel the order. If the seller accepts the additions or alterations he is entitled to make the necessary changes in time of delivery and price.
4.1. If the parties have not explicitly agreed on any other terms, the goods will be dispatched according to the ex works clause, Incoterms 1990.
4.2. In the case of goods damaged on arrival, the buyer must immediately complain to the carrier responsible for the delivery (haulage contractor/ railway/post office etc.).
5. Delivery time
5.1. The pre-arranged delivery time is stated in the seller’s confirmation of the order. The pre-arranged delivery time is not binding for the seller, if the buyer does not meet the prearranged dates of payment with reference to payment in advance, opening a credit/issuing a confirmed irrevocable letter of credit, or guaranteeing.
5.2. Normal delivery time is 2-6 working weeks depending on the combination of orders. In the case of large or special orders the delivery time may however exceed 6 working weeks.
5.3. In the case of delay due to circumstances with the seller, except from situations of force majeure, the buyer is entitled to send the seller a written announcement demanding delivery, and setting a deadline of min. 4 weeks. If delivery has not taken place within the deadline set by the buyer, the buyer is entitled to cancel the agreement.
5.4. The buyer cannot claim any other actions/remedies for breach of contract in connection with the delay. Thus the buyer cannot claim compensation of any kind, such as compensation for loss on operations or consequential damage
6.1. If there is no written agreement saying otherwise, terms of payment are net cash from the time the order is placed.
6.2. Only buyers included in the insurance contract between the seller and his collaborative partner can obtain a credit of up to 30 days net from the date of invoice.
6.3. The terms of payment are as follows: Cash payment at order - 5% extra discount CAD (cash on delivery) - 3% extra discount Normal 30 days net cash - 0% extra discount
6.4. If the above mentioned terms of payment are violated, the buyer must pay a monthly interest according to the rate stated in the seller’s quotation/ confirmation of the order, from the due date until the due amount has been credited to the seller’s bank account. If no rate has been stated the monthly interest rate is 1.2%. Unless the parties have agreed on other terms, the buyer must make his payments by bank transfers to the seller’s account at the buyer’s expense.
6.5. Overdue payment: If payment is arriving later than 30 days after due date and this happens without written agreement with the bookkeeping department at the seller’s insurance company or/and the bookkeeping department at the seller, the agreed terms of payment are automatically cancelled. This is due to the fact that the seller’s insurance policy for the buyer’s company will be cancelled by the buyer’s insurance company when payment has arrived later than 30 days after due date. This happens automatically.
6.6. The seller reserves his property rights to any de-livery, until the final purchase sum with accrued interest, if any, has been paid in full.
6.7. Violation of the terms of payment is regarded as the buyer’s breach of the contract/agreement and the seller may thus claim actions/remedies for the breach concerning the order in question. Further the seller is released from his co-operation with the buyer in general. The buyer’s default of payment thus results in repeal in all of the buyer’s right to negotiate and any other rights, and the buyer is in this connection not entitled to make any demands relating to the repeal of the right to negotiate etc.
6.8. Handling fee: For orders below 1,000 Euro there will be added a handling fee to the invoice for the moment of 50 Euro.
7. Duty of inspection
7.1. Before the product is brought into use the buyer has an obligation to test it properly under realistic conditions of use, and he has an obligation to complain immediately, if the product should not prove to be entirely satisfactory.
8. Guarantee/Defects liability
8.1. On the condition that the terms of payment are met, the seller offers a 5- year guarantee for defective products due to manufacturing error, which runs from the date of delivery. This guarantee means that the seller can choose to make a replacement delivery, take back the defective products and credit the buyer, or give the buyer a reduction on the purchase price.
8.2. The seller’s responsibility for defects is always and in any situation confined to replacement delivery, taking back the products and crediting the buyer, or giving a reduction on the purchase price. Thus the seller does not cover any costs in connection with new installation of replaced products, or costs in connection with interruption of operation, lost production or any other indirect loss.
8.3. The seller’s responsibility for defects does not include the consequences of natural wear, physical abuse, lack of observation of installation instructions, faulty use, faulty maintenance, faulty operation, or other circumstances for which the buyer has the responsibility or risk.
8.4. A by the seller prepared safety-instruction whose content the buyer is obliged to be acquainted with will always accompany the products. In addition to this the buyer is obliged to prepare and update a complementary safety-instruction which always must meet the special safety demands in regards to the sellers resale.
9. Complaints/Notification of defect(s)
9.1. The buyer must send a written notification directly to the seller without groundless delay immediately after the defect has been detected, or should have been detected. The notification must include a specification of the defect.
10. Non-material rights
10.1. The seller’s sketches, layouts, finished drawings, text drafts, and the like belongs to the seller and cannot without the seller’s accept be passed on to any third party.
10.2. The seller is not responsible to the buyer for legal marketing of the delivered products in Denmark and abroad with regard to illustrations, texts, trademarks, other business characteristics and packaging, such as design. The buyer must check this him self and make the necessary investigations in this matter, including potential notification of his trademark in Denmark and abroad.
10.3. Should the seller incur liability to a third party because of the buyer’s lack of rights, the buyer must indemnify the seller against such liability. The buyer has an obligation to ensure that he is sued at the same court, which deals with the question about the seller’s liability to the third party.
10.4. The buyer has an obligation to market the seller’s products under the product name given by the seller, and the buyer is not entitled to market the seller’s products under any other name. Taking into account that the seller’s products are patented the buyer is also obliged to give information about this in his marketing/sale of the seller’s products to third parties.
11. Product liability
11.1. To the extent that nothing else follows from mandatory legal provisions the following points are in force with regard to the seller’s product liability:
11.2. The seller only has liability for personal injury if it can be proven that error or omission committed by the seller or others for whom he is responsible has caused the injury.
11.3. The seller has no liability for damage to real property or movable property, which occur while the product is in the buyer’s possession. Nor does he have any liability for damage to products produced by the buyer, or to products, which contain parts of products produced by the buyer. Apart from the above mentioned the seller has liability for damage to real property and movable property on the same conditions as for personal injury.
11.4. The seller has no liability for loss on operations, loss of earnings, or any other indirect loss.
11.5. Expenses in regards to the sellers product liability is limited to DKK 10 million for personal and/or property damage. However the sellers product liability is limited to DKK 2 million for processing coverage or risk prevention.
11.6. To the extent the seller might incur product liability to a third party, the buyer has an obligation to indemnify the seller against this to the same extent the seller’s liability is limited according to the 3 previous points.
11.7. The above mentioned limitations to the seller’s liability are not in force if he is guilty of negligence.
11.8. Should a third party claim compensation from one of the parties as laid down by this point, the party in question must immediately inform the other party hereof.
12.1. The seller is entitled to wholly or in part to let the work be done by subsuppliers.
13. Force majeure
13.1. The following circumstances free the seller from responsibility, if they occur after the agreement has been entered and if they hinder or postpone the fulfilment of the agreement: War and mobilization, rebellion and disturbances, natural disasters, strikes and lockouts, scarcity of goods such as defects or delays in deliveries from sub-suppliers, fire, lack of transport facilities, currency restrictions, import/export restrictions and other circumstances on which the seller has no influence.
13.2. In the cases mentioned above the seller is entitled to cancel the order wholly or in part, or to deliver the order when the obstacle hindering fulfilment no longer exists.
14. Choice of law and jurisdiction
14.1. Any disagreement or dispute between the parties in connection with the agreement including the understanding and extent of these terms of sale and delivery will be settled by the Court of Aarhus using Danish law.
14.2. Both parties have a mutual obligation to be sued at the court, which deals with compensation claims from third parties against one of them concerning product liability.
Mørke, may 2007