Terms of sale and delivery

Download

West Diesel Engineering A/S salgs- og leveringsbetingelser

1. General

Unless otherwise agreed in writing, the general terms of sale
and delivery outlined below (hereinafter referred to as “the
Terms”) shall govern all supplies made by West Diesel Engineering
as, H.E. Bluhmesvej 6, DK-6700 Esbjerg (hereinafter
referred to as “the Seller”) to the Buyer.
The Buyer’s general purchasing conditions, irrespective of
whether these form part of the Buyer’s sales documents,
including the acceptance, shall not be taken into account.
The above shall apply irrespective of when such purchasing
conditions appear.

2. Quotation, order and acceptance

Written quotations made by the Seller which do not stipulate
any specific period of time within which acceptance must be
given shall lapse unless absolute and unqualified acceptance
is received by the Seller within 30 days from the date of the
quotation. Verbal quotations shall be accepted immediately.
Quotations made by the Seller are subject to the goods being
unsold. The Seller’s services shall only include what appears
from the order confirmation/invoice. Any agreed changes or
addendums to the original contract shall not be binding on the
Seller without the Seller’s written confirmation. It shall be possible
at any time to demand that security for the full amount be
provided – e.g. by way of a bank guarantee – before deli-very/
erection is commenced.

3. Prices

All prices shall be stated in Danish kroner (DKK) or EUR exclusive
of VAT, freight, customs duties, direct and indirect taxes.
Should the prices of the quoted or agreed supply change due
to changes in purchase prices, raw material prices, exchange
rates, freight, customs duties, direct and indirect taxes and the
like, the Seller shall be entitled to change the prices quo-ted
to and/or agreed with the Buyer. Unless otherwise agreed, the
price shall be ex warehouse.

4. Payment

Unless otherwise agreed in writing, payment shall be effected
in compliance with the terms of payment printed on the invoice.
In case of late payment, default interest of 2 per cent per month
or part thereof shall be charged as from the due date. Payment
cannot be effected by a set-off if the counter claim is in dispute.
Failure to observe the Seller’s terms of payment shall be
considered as material breach of contract entitling the Seller to
stop any further supplies to the Buyer and to demand that any
outstanding amount, due or not due, be paid immediately. A
reminder fee shall be charged for each reminder forwarded.

5. Changing or cancelling orders

Should the Seller approve that the order is changed or
cancel-led, the Buyer shall be under an obligation to pay the
expenses incidental to the change or cancellation. In the event
of cancellation in full or in part, the Buyer shall moreover compensate
the Seller for any lost profit.

6. Product information and changes

Data included in product information shall only be binding in
so far as the Seller makes explicit references thereto in writing.
The Seller shall reserve the right to change all product specifications
without notice if such changes can be made without
any considerable inconvenience to the Buyer. Dra-wings,
specifications and the like supplied by the Seller before or after
the conclusion of the contract shall remain the Seller’s property
and shall not be allowed to be passed on without the Seller’s
written consent.

7. Delay on the part of the Buyer (clauses 19 and 20 of NLM 94)

If the Buyer finds that he will be unable, within the agreed time,
to carry out the measures which he is under an obligation to
carry out and which is necessary for the completion of the
supply, including the obligations pursuant to clauses 9, 12and
13 of NLM 94, or if such delay on his part seems likely, he shall,
without undue delay, by written notice inform the Seller thereof.
He shall also state the reason for the delay and, if possible, how
long the delay will last.
If the Buyer is in delay with respect to carrying out his obligations
in accordance with the preceding paragraph, he shall
nevertheless effect any payment conditional on the Seller’s
services as if the delay had not occurred.
If the Buyer is in delay with respect to carrying out his obligations
or otherwise fails to perform his obligations, including
those pursuant to clauses 9, 12 and 13 of NLM 94, he shall
reimburse any additional cost thereby incurred by the Seller
in addition to any claims made in pursuance of clause 23(2) of
NLM 94. The Seller shall be entitled to a reasonable extension
of the time of delivery as a consequence of the Buyer’s breach
of contract. Should the Seller demand such extension, he shall,
without undue delay, inform the Buyer in writing thereof.
Should the breach be material, the Seller shall be entitled to
refuse to continue the delivery and the erection until the breach
has been remedied. If the Buyer has not remedied the breach
within one month after having received a written notice from
the Seller stating that the Seller intends to exercise his right to
terminate the contract, the Seller shall be entitled to terminate
the contract by forwarding a new written notice to the Buyer. If
the contract is terminated, the Seller shall be entitled to claim
damages from the Buyer for any loss suffered by the Seller as
a result of the Buyer’s breach of contract. Such damages shall
not exceed the contract price.

8. Dispatch and delivery

Time and place of delivery shall be as stated in the order confirmation.
Unless otherwise agreed, the terms of delivery shall be
ex warehouse so that the Buyer bears the risk and the costs in
connection with the supply.

9. Time of delivery

The time of delivery shall be fixed by the Seller to the best of his
judgment in accordance with the conditions existing at the time
of making the quotation and/or the contract. Unless otherwise
agreed in writing, an extension of the delivery time by 10 working
days shall in every respect be considered as timely delivery,
which means that the Buyer cannot for this reason exercise any
rights against the Seller. The Seller shall, without undue delay,
inform the Buyer of any changes in the time of delivery.

10. Liability for property damage before the Buyer’s taking over of the supply

The Seller shall be liable for any damage to the supply
occur-ring before the risk has passed to the Buyer. This shall
apply irrespective of the reason for the damage unless the
damage is caused by the Buyer or some other person for
whose actions the Buyer is liable. Should the Seller not be
liable for the damage to the supply pursuant to this Clause, the
Buyer shall nevertheless be entitled to demand that the Seller
makes good the damage at the Buyer’s expense.
The Seller shall only be liable for damage to the Buyer’s
property before the Buyer’s taking over of the supply if it can
be proved that the damage in connection with the completion
of the supply has been caused by negligence on the part of
the Seller or some other person for whose actions the Seller
is liable. However, the Seller shall under no circumstances be
liable for any operating loss, loss of profit or other consequential
financial loss.

11. Defects and complaints

The Buyer shall immediately on delivery and not later than
three days from receipt of the goods examine the goods sold
in such a way as required by generally accepted business
practice.
Should the Buyer wish to complain about a defect, the Buyer
shall immediately and not later than two weeks from the time
when the defect is or should have been detected notify the
Seller in writing thereof, stating what the defect is about. Such
notice shall describe how the defect manifests itself. If there
is reason to believe that the defect may cause damage, such
notice shall be given immediately.
In the event that the Buyer has or should have detected the
defect and the Buyer fails to complain as specified, it shall not
be possible for the Buyer to submit a claim with respect to the
defect at a later time.
If the Buyer fails to complain about a defect to the Seller within
twelve months from the date of delivery, it shall not be possible
for the Buyer to submit a claim with respect to the defect at a
later time. If the supply is used more intensively than agreed
or more intensively than presumed at the conclusion of the
contract, this period shall be shortened proportionately.
The Seller shall be under an obligation to remedy all defects
due to faults in construction, material or workmanship.
Defective goods shall, at the Seller’s option, be repaired or
replaced or the Buyer shall be credited with the purchase
price of the defective goods. The Seller shall, for a period of
twelvemonths, assume the same obligations for the parts of the
supply which have been repaired or replaced as those applying
to the original supply. For the other parts of the supply, the
period mentioned shall only be extended by the time period
during which it has been impossible to use the supply due to
defects. Notwithstanding the above, the Seller’s liability for
defects shall not apply for any part of the supply for more than
24 months from the Buyer’s taking over of the supply. Any
change to or technical modification of the goods sold without
the Seller’s consent shall exempt the Seller from all liability and
all obligations.
No warranty shall be provided on any goods purchased or any
services rendered.
The Seller’s liability shall only cover defects appearing under
the working conditions foreseen in the contract and during the
correct use of the supply. The Seller’s liability shall not cover
any defects caused by material provided by the Buyer, designs
prescribed or specified by the Buyer, faulty preparatory work
performed by the Buyer and circumstances appearing after
the Buyer’s taking over of the supply, including defects caused
by faulty maintenance on the part of the Buyer, changes in the
supply made by the Buyer without the Seller’s written con-sent,
faulty repairs made by the Buyer as well as normal wear and
tear and deterioration.
The Seller shall not be liable for other defects than those
mentioned above. This shall apply to any loss caused by the
defect, including operating loss, loss of profit and any other
consequential financial loss. Such limitation of the Seller’s
liability shall not apply in case of gross negligence on the part
of the Seller.

12. Retention of title

The Seller shall, with the limitations stipulated by mandatory
provisions of law, retain the title to the goods sold until the
entire purchase price and the expenses incurred in connection
with the dispatch, delivery and insurance of the goods which
are paid by the Seller on behalf of the Buyer have been paid by
the Buyer, or the agreed security has been provided, and until
this has taken place, the Buyer shall not be entitled to resell the
goods or otherwise deal with the goods in a way that conflicts
with the Seller’s retention of title.
In the event that the goods sold are modified or processed,
without the goods losing their distinctive features or identity,
however, the retention of title shall be maintained in such a way
that it covers the modified or processed goods to an extent
corresponding to the value which the goods sold represented
before being modified or processed.
When the Buyer has paid or provided the agreed security for all
amounts due, and the title to the goods has passed to the Buyer,
the Seller shall confirm this when demanded by the Buyer.

13. Limitation of liability

As far as claims concerning the Seller’s performance or
non-performance of his obligations are concerned, the Buyer
shall be entitled to receive damages for direct loss with the
following limitations:
The Seller’s liability for damages shall be limited to direct damage/
loss and shall – irrespective of the cause and irrespective
of the nature of the claim – be limited to the highest of the following
two amounts: DKK 2,000,000.00 or the amount invoiced
for the service which caused the damage/loss or which is the
cause of or which is directly related to the claim for damages.
The Seller shall under no circumstances be liable to pay
damages to the Buyer for any loss of profit, loss of savings or
other indirect loss or consequential damage due to the use of
the goods sold or lack of opportunity to use the goods sold
irrespective of whether the Seller has been informed of the
possibility of such claims.

14. Force majeure

The Seller shall not be liable to pay damages to the Buyer
for loss which arise from circumstances of an unusual nature
and which prevent the performance of the contract or makes
the performance of the contract difficult or expensive in the
event that such circumstances occur after the making of the
quotation and are beyond the Seller’s control, including: Labour
conflicts (strikes and lockouts), fire, war, rebellion, civil unrest,
unusual weather and natural disasters, currency restrictions,
public seizure, import and export bans, interruption of general
traffic, including supply of energy, considerable increases in
prices and/or indirect taxes, exchange rate fluctuations, production
and delivery difficulties due to circumstances for which
the Seller cannot be blamed as well as the occurrence of force
majeure and/or hardship at the relevant subsuppliers.

15. Product liability

The Buyer shall indemnify the Seller if the Seller is held liable
to any third party for such damage and such loss for which the
Seller, cf. points a and b below, is not liable towards the Buyer.
The Seller shall not be liable for any damage caused by the
supply after the Buyer’s taking over of the supply:
a) to property or chattels personal occurring while the supply is
in the Buyer’s possession,
b) to products manufactured by the Buyer or to products of
which these products form part, or for any damage to proper-ty
or chattels personal caused by these products as a result of
the supply.
The limitations of the Seller’s liability mentioned above shall
not apply in case of gross negligence on the part of the Seller.
In all other respects concerning product liability, the Seller
shall be liable and/or responsible pursuant to the provisions on
product liability included in Danish law. The Buyer shall notify
the Seller immediately if any third party claims that the Buyer
incurs product liability. The Seller shall under no circumstances
be liable for any operating loss, loss of profit or any other
indirect loss.
Should a third party bring an action against the Seller concerning
product liability, the Buyer shall accept that he may
be joined as a party to the action or that proceedings may
be initiated against him at the court of law or the arbitration
tribunal hearing the case.

16. Disputes, applicable law and jurisdiction

Disputes between the parties which cannot be settled amicably
shall be decided by the Maritime and Commercial Court in
Copenhagen, Denmark, or in the event that the Maritime and
Commercial Court lacks the subject-matter jurisdiction to
hear the case – by the City Court in Esbjerg, Denmark, under
Danish law. However, Danish private international law referring
to foreign law as well as the Convention on Contracts for the
International Sale of Goods (CISG) shall not apply.
Reference is, moreover, made to the provisions included in
NLM 94 which – in so far as the Parties’ contractual relationship
is not governed by the above – shall apply to the Parties’
business operations.