Terms of Sale and Delivery
AUTOMATIC SYD A/S - General Terms of Sale and Delivery
Unless otherwise expressly agreed in writing, the supply of goods by the Seller shall take place on the terms set out hereinafter.
2. Seller’s Offer
Offers made by the Seller which do not state a specific deadline for acceptance shall lapse if the Buyer’s unqualified acceptance is not received by the Seller within 60 business days of the date of the offer. All prices are stated in Danish kroner and are exclusive of Value Added Tax. The Seller reserves the right to make changes in prices quoted both before and after acceptance, where changes in prices of materials, subsupplier prices, government taxes, exchange rates and wages, etc. occur. If the nature of the equipment sold is changed, or if the costs of the Seller are otherwise increased owing to circumstances pertaining to the Buyer, the Seller reserves the right to make adjustments in the contract price. Conventional known / regulatory environmental costs / charges will be added to the invoice total, and are not included in the quoted price. Unless expressly included in the price, packaging shall be charged to the account of the Buyer. The packaging shall only be returnable according to special agreement.
All goods shall be delivered ex works (EXW, Incoterms 2000). Freight and shipment from the Seller’s address shall take place for the Buyer’s account and risk. This shall apply irrespective of whether the goods sold are delivered to the Buyer by the Seller’s own staff or by a third party according to special arrangement with the Buyer.
4. Scope of Supply
The Seller’s supply shall comprise only the parts and goods specified in the offer. All drawings, specifications, etc. supplied by the Seller before or after the signing of the contract shall remain the property of the Seller and may not be transferred or copied without the written consent of the Seller. Nor may such material be otherwise misused. The equipment supplied must not be manufactured or copied or be transferred to a third party for such purposes either.
5. Reservation of Property
The equipment supplied shall remain the property of the Seller until payment has been made in full to the extent that such reservation of property is valid under governing law. The buyer is liable to hold the delivered supply insured until the property right has passed to the buyer
6. Terms of Payment
Invoiced amounts are payable not later than 8 days after the date of the invoice. Payment of the amount must be effected, however, on or before the date on which the equipment is physically delivered to the end user or otherwise transferred to his care. In the event of overdue payment of all or part of the amount, interest will be added at the rate of 2 per cent per month or part thereof, starting from the date when payment becomes due. Moreover, overdue payment constitutes material breach of contract, whereupon the Seller shall be entitled to cancel the contract and to claim damages for the losses suffered. The Buyer shall not be entitled to set-off any claims against the Seller without the Seller’s written acknowledgment of such claims, nor shall the Buyer withhold any part of the purchase sum on account of counterclaims of any kind. Delivery of goods on credit requires that the buyer can be fully insured by the seller´s insurance company or the buyer prior to project start provides a similar guarantee.
7. Time of Delivery
The time of delivery shall be fixed contractually. If no fixed arrangement is made, the time of delivery may be fixed by the Seller. Unless otherwise expressly agreed, a postponement of the time of delivery by 14 days owing to circumstances pertaining to the Seller shall in all respects be deemed delivery within the agreed time, the Buyer thus being unable to exercise any rights against the Seller on that account. If the time of delivery has passed without the Buyer having collected the equipment or given instructions for the dispatch of it the Seller shall be entitled to store and insure the equipment for the Buyer’s account. If, in spite of written requests to do so, the Buyer fails to collect the equipment, the Seller shall be entitled to dispose of the equipment at the best possible price to a third party and to claim any difference between the price obtained and the contract price from the Buyer.
8. Defects and Complaints
Upon receipt of the equipment the Buer shall forthwith undertake such examination thereof as is required by fair trading practice. Where the Buyer wishes to complain about a defect, he shall immediately after the defect has or should have been discovered notify the Seller in writing, stating the nature of the defect. If the Buyer has or should have discovered the defect and does not submit a complaint as stated, the complaint shall not be lodged later. At the Seller’s option defective goods will either be repaired or replaced. Wages and any transport costs in connection therewith will be charged to the customer, the Seller thus only being liable for the costs of materials. Where a defect has not been complained about by the Buyer to the Seller within six months of the delivery date, a complaint in that respect shall not be lodged later. With regard to parts replaced or repaired the Seller shall assume the same obligations for a period of six months as with respect to the goods originally sold. Provided always that the Seller’s liability for defects shall not be extended beyond 12 months from the original delivery date for any part of the equipment sold. The Seller shall be exempt from any liability in the event of such modifications to or interference with the equipment sold as take place without the Seller’s written consent.
9. Limitation of Liability
A claim for damages made against the Seller shall not exceed the amount invoiced for the equipment sold. The Seller shall not be liable for loss of production, loss of profits or other indirect losses in connection with the contract, including indirect losses resulting from delay or defects in the equipment sold. The Seller shall be exempt from liability where the following circumstances prevent performance of the contract or render such performance unreasonably onerous: Industrial disputes and any other circumstances beyond the control of the parties, including conflagration, war, mobilisation or unforeseen military activities of equivalent scale, confiscation, seizure, currency restrictions, riot and civil unrest, lack of transport, general commodity shortage, fuel restrictions, as well as defects or delay in consignments from subsuppliers due to any of the circumstances mentioned in this Article. Circumstances such as the aforementioned, which occurred before the offer was made or the contract signed, shall only lead to exemption from liability if their effect on the performance of the contract could not have been foreseen at that time.
10. Returning of Goods
The equipment sold may only be returned according to
prior written agreement. In those cases where the Buyer is entitled to cancel the contract, or where the equipment sold is returned to the Seller for the purpose of replacement or for repair of defects, the equipment concerned shall be returned to the Seller in the original packaging and for the Buyer’s risk and account. To the extent that transport costs, etc. are incurred by the Seller, the Seller shall be entitled to claim that such costs be refunded by the Buyer and off-set against any claim made by the Buyer against the Seller. After completion of repair or in case of replacement, the goods repaired or replaced shall be collected from the Seller by the Buyer for the account and risk of the latter.
11. Liability for Damage caused by the Equipment (Product Liability)
The Buyer shall reimburse the Seller for claims made against the Seller by third parties concerning such damage and losses for which the Seller is not liable to the Buyer under Paragraphs two and three of this Article. The Seller shall not be liable for damage caused by the equipment: a) to real and personal property and occurring while the equipment is in the Buyer’s possession. b) to products manufactured by the Buyer or to products in which these products are incorporated, or for damage caused by these products to real and personal property as a result of the equipment. The Seller shall not be liable for loss of production, loss of profits or other indirect losses in connection with the contract, including indirect losses resulting from delay or defects in the equipment sold. The limitations stated in the liability of the Seller shall not apply in case of gross negligence on the part of the Seller. If a claim for damages in accordance with this Article is made by third parties against one of the parties, such party shall immediately notify the other party thereof. The Seller and the Buyer are mutually bound to submit to legal proceedings at the Court or Arbitration Tribunal which deals with claims for damages made against either party on account of damage or loss allegedly caused by the equipment. Provided always that disputes between the Buyer and the Seller concerning product liability shall always be settled by arbitration in accordance with Article 15.
12. Software Licence
The making of software licensing agreements shall only confer upon the Buyer the right to use the software as stated in a separate licensing agreement. This right is non-transferable, and the Buyer shall not be entitled to make copies of the programs for others.
13. Transfer of Rights and Obligations
The Seller shall be entitled to transfer all rights and obligations under the agreement to a third party.
14. Governing Law
The supply of goods by the Seller shall be governed by Danish Law in general and in particular by the Danish Sale of Goods Act with amendments in force at the time in question.
Disputes arising between the parties which cannot be settled amicably shall at the Seller’s option be settled by arbitration or by the ordinary Courts of Law. In cases to be settled by arbitration the procedure described in the Danish Arbitration Act No. 181 of May 24, 1972 with amendments shall apply. Where the Seller decides that a dispute shall be settled by the ordinary Courts of Law, the Seller’s District Court, i.e. the Court of Sønderborg, shall have jurisdiction.
16. Contract Language
These General Terms of Sale and Delivery are also available in a Danish and a German version. In the event of disputes concerning the construction of the agreements made, including the construction of the present General Terms of Sale and Delivery, the Danish version shall apply.