Terms and Conditions of Sale and Delivery
Seller’s Terms and Conditions of Sale and Delivery shall be the only applicable and any Terms and Conditions of the Buyer will not be recognized, unless expressly accepted by Seller in writing. Seller’s Terms and Conditions of Sale and Delivery are applicable, despite Seller’s unconditional performance of Buyer’s order, containing such contradicting conditions. Any special conditions agreed upon between Buyer and Seller concerning the performance of the contract shall appear in writing in the contract. Seller’s Terms and Conditions of Sale and Delivery shall also apply for all future orders and co-operations with Buyer.
Any offer made by Teksam is valid for sixty (60) days from date of offer unless otherwise expressly stipulated in the offer and subject to Seller’s revocation prior to Seller’s receipt of acceptance.
3. APPLICATION OF PRICES
Prices stated are applicable only to the equipment and services specified by Seller and to the quantities thereof specified for delivery within the scope of the contract. If no price has been agreed upon, Seller’s current list price at the time of the conclusion of the contract shall apply. In the absence of such a current list price, the price generally charged for such goods at the time of the conclusion of the contract shall apply.
All prices stated in price lists, catalogues, offers, order confirmations, contracts of sale or pro forma invoices are exclusive of packing.
5. WEIGHTS AND MEASUREMENTS
All illustrations, weights, measurements and capacities stated in Seller’s brochures, offer or contract are approximate only and shall not be binding. Minor discrepancy, without material influence on the function of the equipment, shall not entitle Buyer to claim a defect.
6. SAFETY DEVICES
Seller shall not be required to furnish or be responsible for any safety devices, or any safety regulations except those expressly stipulated in the contract. Buyer shall install and operate the equipment in accordance with all applicable safety laws, codes and regulations.
7. DRAWINGS AND SPECIFICATIONS
Seller’s prices include delivery of two (2) copies of foundation drawings and dimensional sketches of the main equipment/machinery offered, but not constructional drawings. The prices further include two (2) copies of service
manuals and spare parts lists. No drawings will accompany deliveries of spare parts. Seller reserves for itself the copyright and property right in offers, descriptions, drawings, etc. submitted, none of which may be copied, reproduced, handed over or made available to a third party without Seller’s prior written consent. Copying and other duplicating in any way is not permitted.
8. CE TAGGINGS (CE/EU)
CE taggings on Seller’s equipment/machinery cover exclusively the deliveries in question from Seller according to the regulation applicable at the time of the offer and do not under any circumstances cover integration with other machines or equipment. Seller is not liable for damages or defects, due to such integration of Seller’s delivery with other machines or equipment, unless otherwise stipulated in writing in the contract.
9. ADJUSTMENT OF PURCHASE PRICE
In the event that after acceptance of Seller’s offer, customs duty, import or export dues or other additional charges or costs directly caused by government measures taken in Denmark or abroad are imposed on raw materials, machinery components etc., required for performance of the contract, or where after the signing of the contract collective bargaining results in wage increases not foreseeable at the time of signing of the contract, Buyer shall be liable to bear the cost of such increases over and above the price agreed. In the case that the purchase price is agreed in a currency other than Danish Kroner, Seller shall be entitled to adjust the purchase price in the event of change in exchange rates adversely affecting Seller, including change in the exchange rate of the agreed currency relative to Danish Kroner as well as changes in the exchange rate of Danish Kroner relative to the currency agreed and occurring in the period between the offer or the signing of the contract and delivery.
10. DELIVERY / DELAY / EXTENSION OF TIME
(a) Seller will make every reasonable effort to meet scheduled delivery dates and to maintain production schedules consistent therewith; however, Seller is not liable for damage due to any failure to meet such scheduled delivery dates unless otherwise agreed in the contract and no such failure to meet scheduled delivery dates shall be a sufficient cause for termination, except as expressly stipulated in these condition or in the contract.
(b) Scheduled delivery dates shall be extended for delays due to any cause beyond Seller’s reasonable control or by force majeure, including, without limitation, government actions or orders, embargoes, defective materials, default or delay of material suppliers, delays in transportation, labor disputes, fires and floods, inability to obtain fuel, labor or materials, acts of riots, war, terrorism or civil disorders, acts of God and other such causes which delay performance of Seller or any of his sub-suppliers.
If Buyer fails to accept delivery as agreed upon, Seller shall arrange for storage at the risk and expense of the Buyer. Seller shall then be entitled to issue a Certificate of Readiness stating that the particular consignment is ready for delivery, but due to circumstances not attributable to the Seller the Seller is prevented from delivering the equipment and it has now been stored and insured on Buyer’s account. The Certificate of Readiness shall constitute proof of delivery of the equipment or part thereof.
12. RETENTION OF TITLE AND RISK OF LOSS
Unless expressly stipulated otherwise in the contract, the delivery is subject to retention of title, as the equipment remains the property of Seller until fully paid for. Risk of loss of, or damage to the equipment shall be Ex Works
Teksam, Hanstholm according to EXW, Incoterms 2000.
13. TERMS OF PAYMENT
(a) Unless other terms are specified in the contract, progress payments shall become due as parts of the delivery are made under such financial guarantee of payment as Seller may require. If completion of any part of the delivery is delayed by Buyer, payment shall be made based on the price in the contract and the percentage of completion, with the balance payable in accordance with the contract terms stated.
(b) Terms of payment are subject to Seller’s approval at the time the order is accepted and again prior to delivery. In the event that, in Seller’s judgement, Buyer’s credit position changes after the date hereof, Seller reserves the right to refuse to deliver unless paid for in cash without being liable for non-performance of contract either in whole or in part.
(c) If any part of the purchase price is not received by Seller when due, such unpaid amounts shall commence to bear interest as of the due date. The rate shall be the official discount rate of the Danmarks Nationalbank plus nine percent (9%) p.a. until received by Seller. Seller may, moreover, at any time take any legal actions available to Seller to collect amounts due.
(d) If Buyer fails to fulfil the terms of payment or other terms or conditions hereof, Seller may, at his option, cease performance, defer further deliveries to Buyer, cancel the undelivered part of this contract and all other contracts with Buyer, still unfulfilled, sell the equipment to third party and/or claim relief of any loss, including consequential loss.
(e) It is of essence and expressly agreed upon that Seller is entitled to terminate the contract and any underlying agreements connected hereto in any case of the Buyer being subject to a pre -bankruptcy, bankruptcy, receivership or any other situation of voluntarily or involuntarily solvency scheme.
14. TAXES AND DUTIES
The price does not include value-added, sales, use, excise, import, privileged, real or personal property or any other tax or duty that may now or hereafter be imposed upon the transaction, its value, or its use, or any services performed in connection therewith. Such taxes are on the Buyer’s account, and Buyer agrees to pay or reimburse any taxes or duties which Seller or his sub-suppliers are required to pay.
Unless otherwise stated in the contract Seller does not provide insurance. In the event that any part of the purchase price shall fall due for payment after delivery, Buyer shall take out customary transport insurance in respect of the equipment sold and shall subsequently take out customary insurance for full value and replacement value in respect of the equipment sold and shall retain such policy in force until full payment has been made.
In the event that a defect in new equipment or machinery, delivered by Seller has been proved by Buyer to be due to the Seller’s design, manufacture or material, Seller shall be entitled and liable without undue delay to remedy on the following lines.
(a) In respect of equipment or machinery, used in one-shift operation, Seller shall deliver new replacement parts, cf. (f), provided that the Buyer proves a material defect within twelve (12) months from date of delivery.
(b) In the event that equipment or machinery, are used in two- or three-shift operation, new replacement parts shall however only be delivered, cf. (f), if a material defect has been proved by Buyer within six (6) months from date of delivery.
(c) Where mounting and erection is effected by Seller, the time limits referred to in (a) and (b) above shall be calculated from the date of completion of said mounting and erection, however not later than fifteen (15) months from date of delivery.
(d) Normal wear and tear or deterioration or the effect of faulty handling or lack of due care in maintaining by Buyer shall not be deemed a “defect”.
(e) Irrespective of the time limits stated in (a) and (b) above, Buyer shall lodge his complaint without undue delay reckoned from the time when he became or ought to have become aware of the defect in question, or he looses his right to claim the defect.
(f)Transportation by Seller of replacement parts, due to defects will be effected Carriage Paid To Buyer’s site (CPT, Incoterms 2000) by road, rail, or sea at Seller’s exclusive option and otherwise on Buyer’s account and risk.
(g)Transportation by Buyer in case of return of defective parts is to be effected Carriage Paid To Seller’s site (CPT, Incoterms 2000) at Buyer’s account and risk.
(h) Mounting of replacement parts shall be on Buyer’s account. Buyer shall not be entitled in respect of defects as referred to above to advance other default claims than those mentioned above.
17. LIMITATION OF LIABILITY
(a) Buyer and Seller agree that the contract and these conditions of sale and delivery set forth the sole and exclusive remedies available to Buyer and that Seller’s liabilities are limited as set forth herein. Seller has neither implied nor expressed, granted or assumed any other warranties or guarantees of whatever kind.
(b) Seller is not liable for any damage to real or personal property. Seller shall only be liable for personal injury if proved that the injury was directly due to the equipment being defective on delivery to Buyer and if proved that the injury was due to deceit or gross negligence by Seller. Seller’s liability only includes damages or injuries arising within the period set forth in Clause 16. To the extent product liability may be imposed upon Seller by a third party, Buyer is obligated to indemnify Seller to the same extent as Sellers liability is limited, as mentioned above.
(c) Seller shall under no circumstances be liable for special, incidental, exemplary, or consequential damage (hereafter referred to collectively as “consequential damage”), including, but not limited to loss of profits, anticipated revenue, interest, loss of use, cost of substitute equipment, additional use of fuel or other utilities, costs incurred in removing defective or non-conforming equipment, reinstallation of conforming equipment or of complete replacement delivery, delays in installation of the work or completion of any project in which the equipment is being installed, proportional reduction of prices, or other claims due to any cause whatsoever, whether or not such loss or damage is based in contract, warranty, tort (including negligence), strict liability or otherwise.
(d) Seller’s maximum aggregate liability for loss or damage arising under, resulting from or in connection with the supply or use of the equipment provided under the contract, or from the performance or breach of any obligation(s) imposed hereunder, whether such liability arises from any one or more claims or actions for breach of contract, tort (including negligence), delayed completion, warranty, indemnity, strict liability or otherwise, unless otherwise limited by the terms hereof, shall be limited to ten per cent (10%) of the contract price, however such liability shall terminate upon the expiration of the periods set forth in Clause 16.
(e) No liability, whatsoever, shall attach to Seller, unless said equipment has been fully and irrevocably paid for.
18. GOVERNING LAW AND DISPUTE RESOLUTIONS
Any dispute or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof shall be finally and solely settled by arbitration in accordance with the “Rules of Procedure of the Danish Institute of Arbitration” (Copenhagen Arbitration).
-The Arbitration Tribunal shall be composed of three arbitrators.
-Each party appoints an arbitrator and the Institute appoints the Chairman of the Arbitration Tribunal. If a party has not appointed an arbitrator within 30 days after having respectively requested or received notice of the arbitration the Institute appoints such arbitrator.
-The place of arbitration shall be Copenhagen.
-The language of the arbitration shall be English.
-The award and proceedings shall be confidential.
-The laws of Denmark shall govern this contract.
The provisions of this Clause 18 shall survive the invalidation, termination or expiration of the Contract.