General Terms of Sales and Delivery of NORDIC STAINLESS ApS
1.1 These General Terms of Sale and Delivery (hereinafter referred to as the ”Terms”) apply to all supplies of products and/or services (hereinafter collectively referred to as the ”Product”/”Products”) from Nordic Stainless ApS, business reg. no. 38593218 (hereinafter referred to as the ”Seller”) to any customer (hereinafter referred to as the ”Buyer”), unless otherwise explicitly agreed between the parties.
1.2 The Terms take precedence over any conflicting provisions in the Buyer’s order, acceptance and/or the Buyer’s general terms of purchase, even in cases where the Seller does not object to such conflicting provisions. Any such conflicting provisions in the Buyer's order, acceptance and/or the Buyer’s general terms of purchase are only binding on the Seller if and to the extent that they are explicitly accepted by the Seller in writing.
2. Offer and formation of agreement
2.1 An enforceable and binding agreement has not been made until the Buyer has received the Seller's written, including electronic, acceptance of the Buyer's purchase offer or until the Seller has received, within the time stipulated for acceptance, a written, including electronic, acceptance from the Buyer of a sales offer made by the Seller.
2.2 Any offer from the Seller is subject to prior sale.
2.3 An offer from the Seller must be accepted immediately after the offer has been made, however, no later than seven (7) calendar days after the offer has been sent by the Seller.
3. Product information in the Seller’s material and price lists
3.1 All information about weight, dimensions, capacity, wearing qualities, performance, quality, technical data or the like in the Seller’s catalogues, prospectuses, website, product description, price lists and other promotional literature is for guidance only and not binding on the Seller unless explicitly specified in writing as being part of the parties’ agreement. Moreover, the Seller is not responsible for misprints and model changes.
4. Intellectual property rights
4.1 Drawings, sketches, designs, specifications and technical data procured by the Seller remain the Seller’s property. The Buyer shall treat the information as confidential and shall use it solely for the purpose of the disclosure of the information to the Buyer, and the Buyer is not entitled to disclose, copy and/or pass on the information to third party without the Seller’s prior written acceptance.
4.2 In the event of the Buyer’s breach of clause 4.1, the Seller is entitled to claim compensation for its loss from the Buyer. In addition, the Seller is entitled to obtain an injunction, without provision of security, against the Buyer’s unlawful activities.
5. Prices and terms of payment
5.1 All orders are booked at the prices ruling on the date of conclusion of the agreement, unless otherwise agreed in writing. All the Seller's prices are stated Ex Works the Seller's address in DK-6091 Bjert, Denmark, see INCOTERMS 2010, exclusive of VAT, customs duties, packaging, freight and/or other duties in the currency and for the Products that the agreement relates to.
5.2 Unless otherwise agreed, packaging is paid by the Buyer according to requirements and not accepted for return by the Seller. The Buyer shall dispose of the packaging after use for its own account.
5.3 The Seller reserves the right to change the prices - also after conclusion of the agreement - in the event of changes to public taxes and duties, freight, customs duties and taxes.
5.4 The Products must be paid upon delivery at the latest. The Seller is entitled to withhold and/or prevent delivery of the Products to the Buyer until the Seller has received the Buyer’s payment. If the Buyer is granted an extension of the time for payment, time begins to run from the date of delivery.
5.5 If the Buyer pays late, the Seller is entitled to charge 2 per cent interest on the overdue amount per commenced month.
5.6 The Buyer is not entitled to withhold payments or set off counterclaims against the Seller's claim for payment unless the Buyer's counterclaim has been acknowledged in writing by the Seller or has been established by a judgment/settlement. Thus, notices of defects in the Products do not entitle the Buyer to withhold payment for Products already delivered.
5.7 Non-compliance with the Seller’s terms of payment is deemed to constitute material breach and entitles the Seller to stop any further supplies and to demand immediate payment of any due or undue claim against the Buyer.
6. Quality and quantity
If the Products have not been ordered according to a standard or with a specified description of quality, the Products will be delivered as commercial products without liability for special quality requirements. A certificate will only be provided according to agreement. The Seller will check that the certificate covers the Products supplied, but will not check the information specified in the certificate. The Seller is not liable for the information specified in the certificate.
6.1 For the total quantity of Products supplied, a margin of plus/minus 10 % of the specified quantity in units is reserved.
7.1 It is a precondition for punctual delivery that all the information required for delivery has been received by the Seller prior to the date of delivery.
7.2 The Products are delivered Ex Works the Seller's address in DK-6091 Bjert, Denmark, see INCOTERMS 2010, unless otherwise agreed in writing.
7.3 Unless otherwise agreed in writing, the Buyer is obliged to arrange for collection of the Products at the place of delivery as soon as possible and no later than seven (7) calendar days from notification by the Seller that the Products are ready for delivery. If the Products are not collected within the time stipulated above, the Seller is entitled to send the Products to the Buyer's business address or to a place designated by the Buyer for the Buyer’s account and risk. In that case, the Buyer must ensure that the Products can be unloaded immediately. If personnel and extra material are required for unloading, that will be for the Buyer’s account and risk. The Seller's obligation to send the Products is conditional upon the unloading place being accessible by a passable road.
7.4 Part delivery of Products is permitted unless otherwise agreed in writing.
8. Cancellation and return of Products
8.1 If the Buyer cancels a Product, the Buyer is obliged to indemnify the Seller against any loss and any costs suffered or incurred by the Seller as a result thereof.
8.2 Unless otherwise agreed, supplied Products are not accepted for return. When crediting Products which the Seller has accepted for return, a fee of minimum 20 % of the purchase price of the returned Products will be charged, however, at least DKK 1,500. All costs, including transport costs related to the return of a Product, are payable by the Buyer. Unless otherwise agreed, it is a condition for return and crediting of Products that they are in undamaged condition and in regard to packaged Products that they are returned in the original, unopened packaging. Products made according to the Buyer’s instructions are not taken back.
9.1 The Buyer is obliged to check the supplied Products for defects and quantity immediately upon delivery. If the Buyer finds any defects, the Buyer is obliged to give the Seller notice of such defects in writing immediately and no later than seven (7) days from delivery, including a detailed description of the defects. If the Buyer does not give notice of a defect immediately after it has been or ought to have been discovered, the right to set up claims against the Seller on account of such defect at a later time will lapse.
9.2 The Seller's liability for defects is limited to remedying, making a replacement delivery or granting a proportionate reduction at the Seller's own option.
9.3 The Seller is not liable for losses, either direct or indirect, which may be inflicted upon the Buyer as a result of defective Products, including but not limited to business interruption, loss of time, loss of profit or other similar losses, unless the defect and the Buyer's loss are attributable to the Seller’s gross negligence.
9.4 The Seller’s obligations and liability lapse if components are used in connection with the Products supplied by the Seller that are not made or approved by the Seller.
9.5 If the Buyer has not notified the Seller within a period of 12 months from delivery that the Buyer wants to rely on a defect, the Buyer is not entitled to set up claims against the Seller on account of such defect at a later date.
9.6 The Buyer is obliged to cover the Seller’s costs, including but not limited to costs of materials, experts, lawyers, internal costs and time with the Seller, etc. in connection with the Buyer's notice of defects if and to the extent that it is unfounded or if and to the extent that it concerns defects for which the Seller is not liable.
10.1 The stated date of delivery is based on information from the Seller’s sub-contractors. Any delays in that respect for which the Seller cannot be blamed are accepted by the Buyer and the Seller is not liable for such delays. If a
specific date of delivery has been agreed in writing, any delivery made within seven (7) working days before or after such date is punctual.
10.2 The Seller is entitled to demand that the date of delivery is postponed if the Buyer demands changes in the order, in the event of force majeure, or in the event that delivery has to be stopped or is delayed by order of a public authority.
10.3 Material delays caused by the Seller's negligence or intent entitle the Buyer to terminate the agreement with respect to that part of the supply which is delayed and to repayment of a purchase price already paid relating to the delayed part of the Products, however, not with respect to any future/earlier supplies, regardless of whether such future/earlier supplies might have been comprised by the same order confirmation. Delays do not entitle the Buyer to claim compensation, either for direct or indirect losses such as but not limited to business interruption, loss of time, loss of profit or other similar losses.
10.4 The Buyer is not entitled to set up any claim against the Seller on account of delayed delivery except as specified above.
11. Retention of title
11.1 The following has been agreed with respect to supplies to the Buyer domiciled in other countries than Germany, including in Denmark:
11.1.1 The Seller retains title to the Product until all outstanding amounts have been paid, in particular any specific unpaid balances which are owed to the Seller as part of the business relationship with the Buyer. The Seller is entitled to insure for the Buyer's account the Product against theft, damage, fire, water damage and other damage unless the Buyer has verifiably taken out such insurance.
11.1.2 If the Buyer breaches the agreement, in particular in the event of payment default, the Seller is entitled, after the service of written notice, to repossess the Product. This does not constitute cancellation of the agreement. The Buyer is obliged to inform the Seller without delay of any matters relating to the retention of title, in particular measures regarding distraint or actual interference with the retention of title.
11.2 The following has been agreed with respect to supplies to the Buyer domiciled in Germany:
11.2.1 Any Product supplied remains the Seller’s property until it has been paid.
11.2.2 Supplied Products remain the Seller’s property until all claims under the business relationship have been paid.
11.2.3 In the event of processing of the Products supplied, the Buyer does not obtain title to the products made. The processing is free of charge for the Seller. In the event that the retention of title should still lapse, the Buyer and the Seller already now agree that the title to the Products passes to the Seller at the time of processing and the Seller accepts the transfer. The Buyer stores the product made free of charge for the Seller.
11.2.4 In the event of processing of products still belonging to third party, the Seller acquires co-ownership of the products. The extent of such co-ownership is determined by the difference between the invoice value of the Products supplied by the Seller and the invoice value of the other products.
11.2.5 The Buyer hereby assigns to the Seller its claims relating to resale of Products subject to the Seller’s retention of title, also if the Products have been processed, and the Seller accepts the assignment.
11.2.6 If the processed product, in addition to components supplied by the Seller, only contains components belonging to the Buyer or delivered with the so-called “simple retention of title”, the Buyer assigns the total claim relating to the resale to the Seller.
11.2.7 In other cases, i.e. if the Buyer has assigned a claim to more suppliers, the Seller is entitled to a share of the Buyer’s claim equal to the difference between the invoice value of the components supplied by the Seller and the invoice value of the other components which have formed part of the processing.
11.2.8 Upon the Buyer's request the Seller is obliged to, at its own option, release security to which the Seller is entitled under the above provisions if and to the extent that the realisable value of the security exceeds the secured claims by more than 20%.
11.2.9 The provisions in this clause 11.2 are subject to the law of the Federal Republic of Germany, with the exception of German conflict of laws rules and with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12. Limitation of liability in other cases than product liability
12.1 The Seller is not liable to the Buyer for any kind of indirect loss or consequential loss arising out of or in connection with a purchase agreement which is governed by the Terms, including but not limited to production interruption, loss of time, loss of profit, loss of goodwill, unless the loss is attributable to the Seller’s gross negligence.
13. Product liability
13.1 The general rules of Danish law apply to product liability with the modifications specified below.
13.2 The Seller is not liable for damage to: a) real property or personal property caused while the Products are in the Buyer's possession; b) products made by the Buyer; c) products in which the purchased Products form part; or d) for damage to personal or real property caused by the products specified in point c.
13.3 The Buyer is obliged to indemnify the Seller to the extent that the Seller incurs liability to third party for whom the Seller is not liable to the Buyer according to this clause.
13.4 If third party sets up a claim for compensation against one of the parties under this clause, such party must inform the other party thereof immediately.
13.5 The Seller’s product liability will never exceed the Seller’s insurance cover for the specific damage under the Seller’s product liability insurance.
13.6 The Seller is in no circumstances liable for operating loss, lost earnings, lost savings or other indirect loss or consequential damage resulting from product liability.
14. Breach of agreement
14.1 If the Buyer commits a material breach of the agreement, suspends its payments, becomes subject to bankruptcy proceedings, initiates negotiations for a composition with its creditors or faces a difficult financial situation which cannot be considered temporary, the agreement may be terminated with immediate effect by the Seller.
15. Force majeure
15.1 The Seller is released from its obligation to deliver the Products and is exempt from liability if and to the extent that the Seller is prevented from performing its obligations in the event of force majeure after the conclusion of the agreement which prevents or postpones the performance of the agreement. A force majeure event includes but is not limited to war, mobilisation, riots, terrorist operations, natural disasters, civil commotion, government intervention or intervention by public authorities, fire, strikes, lock outs, bans on export and/or import, changes in inward customs processing, non-delivery or delayed delivery from carriers, sub-contractors’ or carriers’ bankruptcy or suspension of payments or the like, shortage of labour, fuel, motive power or any other cause beyond the Seller’s control. Defective supplies or delayed supplies from sub-contractors as a result of any of the above circumstances are also regarded as force majeure events for the Seller. If delivery conforming to agreement or delivery on time is hindered temporarily due to one or more of the above events, delivery is postponed for the period of time in which the obstacle lasts. Delivery at the date of delivery thus postponed will be regarded as punctual in any respect.
15.2 If a force majeure event continues uninterrupted for 30 days or more, or if it is obvious that it will, either party is entitled to terminate the agreement by written notice to the other party without this resulting in liability for the terminating party.
16. Confidential Information
16.1 The Buyer and the Seller shall treat any information, including prices, received from the other party as strictly confidential. Such information may not be disclosed or used for any other purpose than performance of the obligations under the agreement.
17. General provisions
17.1 The Buyer is not entitled to assign the Buyer’s rights or obligations under the agreement to third party without the Seller's written consent.
17.2 If one or more of the provisions of the agreement or the Terms are unenforceable because they are contrary to mandatory law or not recognised for some other reason, that shall not affect the validity of the other provisions of the agreement or the Terms.
18. Governing law and venue
18.1 Unless otherwise expressly specified in these Terms, any dispute arising out of or in connection with the Terms, the parties’ agreement, including disputes regarding the existence and validity of the agreement, must be settled pursuant to Danish law with the exception of Danish conflict of laws rules.
18.2 Each and every dispute is settled by the Court in Kolding, however, cf. clause 18.3.
18.3 If the parties agree, they may instead let the dispute be settled by arbitration by the Danish Institute of Arbitration in accordance with the rules of arbitration procedure. In that case, the arbitration tribunal must be seated in Kolding and the language to be used during the arbitration proceedings must be English, unless the Buyer is Danish.
Effective as from August 2017