1. Scope
1.1 Any delivery from Klokkerholm Karosseridele A/S, VAT registration no. 34250316 (hereinafter referred to as the Seller) shall be subject to these General Terms and Conditions, which shall be binding on all deliveries between the Parties, thus superseding all agreements and customs contrary to these terms and conditions, including any such drafted and forwarded by the Purchaser, unless otherwise provided by the order confirmation forwarded by the Seller.
2. Formation
2.1 On the submission of its order confirmation, at the earliest, the Seller shall be bound by any statements issued by the Seller, irrespective of the indication or description thereof. Until such order confirmation has been communicated to the Purchaser, the Seller is entitled to withdraw any such statements.
3. Authority
3.1 No independent person/company, such as an agent, representative or broker, shall be authorised to bind the Seller without any written agreement to that effect.
4. Prices
4.1 All prices, price lists and catalogue material shall be noncommittal for the Seller and shall be subject to revision without any prior notice unless otherwise explicitly agreed between the Seller and the Purchaser.
4.2 All prices, including any prices appearing of the price lists prepared by the Seller shall be current prices, excluding of VAT and other public duties.
5. Terms of Delivery
5.1 Deliveries shall be subject to Incoterms 2000 EXW, according to which when the Product has been finished and is ready for delivery, the Purchaser shall carry the risk and all costs by the delivery, including any freight charges. The Purchaser undertakes in due time to provide information on the method of dispatch which he wishes to apply. Otherwise, the Seller is entitled on the Purchaser's account to choose the method and route of dispatch.
5.2 In the event that the Purchaser does not take delivery at the date of delivery or in this connection fails to perform its duty of collection, the Seller is entitled to terminate the Agreement, submitting a claim for damages. Further, the Seller is entitled to sell off or store the Products on the Purchaser's account. If storing, the Products shall be deposited at the Purchaser's risk.
5.3 Products and packaging may only be returned when agreed upon in writing with the Seller.
Only products purchased from the Seller shall be subject to return and the products shall be returned in the same condition as on delivery. Discontinued products shall not be subject to return.
6. Terms of Payment
6.1 Any payment shall be effected as stated in the order confirmation or advice note.
6.2 Any delay in payment shall carry an addition of interest of 1,5% per cent for each month entered into as from the due date and until payment has been effected.
6.3 On the forwarding of prompt notes a dunning charge of DKK 1000.00 per prompt note shall be charged.
In the event of any non-payment the Seller is entitled to claim the Seller’s collection charges to any legal counsel fully covered, and thus not only the maximum charges provided by the Danish Interest Act.
6.4 The Purchaser is not entitled to set off the purchase price or a part thereof, and the Purchaser is not entitled to withhold the purchase price in the event of any objection or complaint being made under Article 9.
6.5 The Product has been sold under a retention of title, according to which the Seller is entitled to take back the Product sold in the event of any non-payment – wholly or partly - by the Purchaser.
6.6 In the event of any violation by the Purchaser of one or more of the obligations stated, including the Purchaser’s obligations under Article 5, the Seller is entitled to terminate the Agreement, sell the Product on the Purchaser's account to any third party and/or submit a claim for damages. The Seller is entitled to claim compensation of any loss, including any indirect losses.
7. Guarantee/Liability
7.1 The guarantee shall solely comprise Products demonstrably defective and erroneous as a result of a defective manufacture or use of poor materials supplied by the Seller. The guarantee shall apply only provided the Products have been securely stored and correctly used by the Purchaser subject to any customary usage in accordance with the Seller’s specifications. The Seller shall not be responsible for any defects and errors owing to any defective maintenance, incorrect assembly performed by the Purchaser, changes made without the Seller's prior written consent, or repairs defectively carried out by the Purchaser.
7.2 In the event of any defective or erroneous Products the Seller is obliged and entitled – at its own choice – to remedy such defect or error, effect a replacement delivery, offer a proportionate reduction of the price, or pay damages. The Purchaser is not entitled to assert further remedies. The Purchaser shall pay any freight charges, insurance costs, travelling expenses and installation costs as well as any other costs or expenses caused by the remedy of any such defects or replacement delivery. The Seller's liability for damages shall be maximised to the invoice price for the defective Product, and the Seller can under no circumstances be held liable in damages for indirect losses such as losses of use or profits.
7.3 The Seller’s guarantee shall not comprise any wearing parts or normal wear and depreciation.
7.4 The period of indemnity shall expire 24 months after the date of sale in which period the Purchaser shall have a right of complaint for any material and production errors.
8. Force Majeure
8.1 The Seller shall not be liable for any non-performance of its contractual obligations, provided the Seller can substantiate that such non-performance is due to circumstances beyond its reasonable control, such as, but not limited to, situations of war, warlike events, fire, strikes, lockouts, bans on exports or imports, embargoes, delayed or defective deliveries of materials from sub-suppliers, production standstills, shortages of energy or transport facilities.
8.2 In that case the Seller is entitled to extend the time of delivery correspondingly or to terminate the Agreement. As soon as any such hindrance has been removed, either Party shall be bound by the Agreement, unless previously terminated by the Seller. Either Party is entitled to terminate the Agreement in the event of any hindrance lasting more than three months.
9. Duty of Defect and Inspection
9.1 The Purchaser undertakes to inspect the Product immediately upon receipt and to complain about any defect within fourteen days, at the latest, upon receipt.
9.2 In the event of any demonstration of defects during the guarantee period the Purchaser undertakes to object to such defects immediately, observing a deadline of eight days of the demonstration of any such defects or of the time when such ought to have been demonstrated.
9.3 After the varnishing of the products purchased from the Seller the right of complaint shall lapse and the Seller shall not grant any damages for any consequential costs.
9.4 In the event of complaints pertaining to transport damages the Purchaser shall complain directly to the performing carrier and subsequently to the Seller.
9.5 If the Purchaser fails to comply with the deadlines stipulated, the Purchaser shall forfeit the right of asserting any such defect.
10. Product Liability
10.1 The Seller shall only be liable for any personal injury or property damage caused by Products, provided such injury or damage is demonstrably due to a defect or neglect on the part of the Seller by a product delivered by the Seller, and provided the Product is demonstrably defective, and that any such injury or damage is due to the said defect, and that there is a causal connection between the injury or damage and the defect concerned.
10.2 Further, the Seller shall be liable neither for damage to real property or chattels, occurring whilst the Product is in the Purchaser's possession, nor for damage to Products manufactured by the Purchaser, and involving the Product. In addition to this, the Seller shall not be liable for any loss of profit, loss of time, loss of earnings or other indirect loss.
10.3 In the event of any liability beyond the above-mentioned being imposed on the Seller, the Purchaser shall be obliged to indemnify the Seller against such liability.
11. Product Information
11.1 The technical specifications and other dimensions stated in the catalogues are merely of a guiding character, and the Seller assumes no responsibility for any errors or mistakes in such catalogues. All information and data stated therein, including price lists, shall merely be binding in so far as this has been explicitly agreed between the Parties.
12. Protection of Rights
12.1 This purchase of the Products shall not confer on the Purchaser any rights to any industrial privileges, and the Purchaser is not entitled to misuse any information on the Product and/or the Products, thereby infringing any such rights of the Seller.
13. Choice of Law and Arbitration
13.1 Any dispute arising in connection with the understanding or construction of this Agreement, including its contents, termination, scope or breach shall be settled by the ordinary courts of law in Denmark. The venue shall be the Seller’s current venue from time to time.
13.2 Any disputes arising in connection with this Agreement shall be settled according to Danish law.
13.3 Any disputes arising in connection with trade between the Seller and any purchaser with business address in the USA shall be finally settled pursuant to the Rules of the Danish Arbitration Institute.
Danish law shall apply and the case shall be settled pursuant to the rules currently in force from time to time at the venue of the arbitration case. The arbitration tribunal shall consist of one arbitrator, i.e. one lawyer being appointed by the Danish Arbitration Institute. The language of the arbitration tribunal shall be Danish. The case is administered in Aalborg in a venue decided by the parties.
13.4 The ruling by the arbitration tribunal shall be subject to enforcement pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) – the New York Convention.
14. Validity
14.1 In the event that any of the provisions in these General Terms shall become invalid, this shall, however, not affect the validity of the remaining provisions.
Klokkerholm Karosseridele A/S
VAT registration no.: 34 25 03 16
July 2005