Terms of Sale and Delivery – 18.11.2022
Unless otherwise agreed, these Terms of Sale and Delivery (hereinafter “Terms”) apply to all offers, sales and deliveries from ANTIDARK ApS (hereinafter referred to as “AD”). The Terms also apply to advice, installation, support and other consultancy services provided by AD. No terms, conditions or other provisions specified in the buyer’s purchasing order or the like shall form part of the agreement between AD and the buyer, and the buyer waives its right to set up claims on account of such terms. Any deviation from the Terms shall only apply if AD has agreed to it in writing.
Only written offers made by AD are binding. Unless a specific time for acceptance is stated in the offer, offers made by AD are binding for 30 days and are subject to any changes to raw material prices, payroll costs, foreign exchange rates, taxes, tariffs etc. For smaller or larger quantities than the quantity offered, AD reserves the right to make changes in prices and time of delivery. AD reserves the right to sell the products comprised by an offer to a third party until the buyer has placed a written order. If the buyer wants special specifications which differ from AD’s standards and/or from what is stated in the offer, such special specifications must be stated in writing and approved in writing by AD. Otherwise, they shall not be binding on AD.
An order from a buyer shall not be binding on AD until AD has confirmed the order in writing. The buyer cannot cancel a confirmed order. Products cannot be returned.
Unless otherwise expressly agreed and stated in the order confirmation, delivery takes place EXW AD’s address in accordance with INCOTERMS 2020. If it is stated in the order confirmation that AD charges a transport insurance fee of 0.25 % of the invoice amount and transport costs, delivery is deemed to have taken place when the product has been delivered by the carrier at the delivery address stated in the order. The buyer shall inspect the product for damage and defects immediately upon receipt and report any of these to AD without undue delay, see clause 9. For provision of advice, installation, etc., delivery will be stated in the order confirmation. For provision of advice, installation, etc. where materials are delivered to the place of installation, the buyer is responsible for taking out building site insurance or the like, covering theft, etc. Any storage will thus be for the buyer’s account and risk.
4. Time of delivery.
Unless otherwise agreed, delivery shall be effected as soon as possible. If a delivery week has been agreed, delivery on the last day of the agreed week shall in all respects be regarded as timely delivery. AD may demand postponement of the time of delivery if:
a. The buyer wants modification of the product;
b. Delays occur as a result of deliveries or services carried out or arranged by the buyer;
c. Work with the delivery has to be interrupted or is delayed due to an obstacle beyond AD’s control which AD could not reasonably have taken into account, avoided or overcome, or such obstacle exists at the subcontractor used by AD for the performance of the agreement.
In case of delay in accordance with paragraphs a and b, AD reserves the right to adjust the agreed price on the basis of the costs incurred by AD in this connection or alternatively to cancel the agreement without the buyer obtaining remedies for breach or AD incurring any liability in damages in relation to the buyer.
Unless otherwise agreed in writing, the purchase price is stated in DKK INCOTERMS 2020 EXW AD’s address exclusive of VAT and other taxes and duties, packaging, freight, transport insurance, installation, etc. Orders not comprised by binding offers submitted shall be executed at the price applicable on the date of delivery.
AD reserves the right to change the price if, after the conclusion of the agreement but before the time of payment, new or increased taxes are imposed on AD by public authorities, including transport, terminal and port authorities, as a direct consequence of the agreed delivery. Other cost increases, including general price increases, are at AD’s risk unless the cost increase is a consequence of sudden and substantial price increases in raw material prices, war or war-like conditions the consequences of which AD could not have foreseen, avoided or overcome. In that case, AD shall be entitled to request a price increment as compensation for the cost increase.
6. Terms of payment.
Payment shall be made according to the terms of payment applicable at any time and in accordance with AD’s order confirmation and/or invoice conditions. If payment is not made when due, interest at the rate of 2.5 % per commenced month will be charged on the amount outstanding. In the event of late payment of the purchase price, AD reserves the right to suspend the completion of this and any other orders agreed with the buyer at the buyer’s expense, e.g. to stop the products in transit and, if possible, to instruct the carrier not to deliver the products to the buyer until the payment obligations and any security obligations have been fulfilled, without the buyer obtaining remedies for breach. In the event of the buyer’s breach of such obligations, AD may demand security for future payments or demand prepayment even if credit has previously been granted without security for such amounts, and without the buyer obtaining remedies for breach.
If delivery is not effected at the agreed time, the buyer shall immediately send a written complaint to AD. The buyer is only entitled to cancel the purchase if the delay exceeds 30 working days and has caused the buyer significant inconvenience. If the delay concerns only part of the consignment, the buyer shall be entitled to cancel the purchase only for that part of the consignment which is delayed, provided that the delay causes the buyer significant inconvenience.
In case of verified delays caused by logistic conditions for which AD is not responsible, the buyer shall not be entitled to cancel the purchase although the delay exceeds 30 working days. If the delay concerns products manufactured according to the buyer’s instructions or if the products are not normally held in stock by AD, the purchase may only be cancelled if the purpose of the buyer’s purchase will be defeated as a result of the delay.
AD undertakes to remedy any documented defects in the products and services delivered by AD which are caused by defects in material and/or manufacture, or to effect replacement delivery if the buyer has submitted a timely and proper complaint in accordance with the provisions stipulated in clause 9. Unless otherwise specifically agreed with the buyer in writing, the quality of the products/services delivered shall be the standard of workmanship chosen by AD. The presence on the market of a different and/or perhaps better quality than the one delivered shall not be regarded as a defect in the product/service delivered. If the product/service delivered is used more intensively than agreed or assumed at the conclusion of the agreement and if this results in breakage, damage or other problems with the product or service delivered, this shall not be deemed to be a defect in the product/service. If the product/service is not stored, handled, installed, and maintained according to instructions and/or correctly with due consideration for workmanship and the existing circumstances, this shall not be regarded as a defect in the product. The buyer has the burden of proof that the above has been observed. In case the buyer requests postponement of delivery of services which require installation/support etc., AD is not liable for defects if and to the extent that the same quality in workmanship cannot be ensured due to change of service man/craftsman.
AD is not liable for any delay resulting from remedy or replacement.
AD disclaims any liability for direct and indirect loss in the event of defects, and the buyer is not entitled to compensation or damages of any kind in the event of defects.
AD’s liability for defects ceases six (6) months after delivery of the product or service.
9. Complaints and duty of inspection.
Immediately upon receipt of the product/service, the buyer shall carry out a thorough inspection to confirm that the product/service is in accordance with the order. The buyer shall immediately submit a complaint about defects identified during this inspection and about any delay. The buyer cannot subsequently claim delay or defects which could have been identified during such inspection. If the product/service has hidden defects, the buyer shall be under an obligation to submit a complaint immediately after the defect is identified or should have been identified. If the buyer fails to do so, the buyer is barred from claiming the defect. All complaints shall be submitted in writing and the buyer shall state the invoice number and date of delivery. The complaint shall also include a description of the scope and nature of the defect.
The product which is the subject of the customer’s complaint shall be returned to AD and collected by the customer at the customer’s expense with a view to examination by AD of whether the complaint is justified and comprised by AD’s remedy and replacement obligation. Return of products to AD shall only take place according to specific agreement with AD. If the complaint is justified, AD undertakes, within a reasonable time and at its own discretion, to either remedy the defect or make a replacement delivery of the same or a similar product. If the buyer omits to fulfil the rules stipulated in these provisions the buyer shall not be entitled to invoke any remedies for breach committed by AD.
10. Disclaimer and product liability.
Except for what is stated in clauses 7 and 8 regarding remedy or replacement delivery, AD does not assume any liability for defects in or delays of products and services delivered, and the buyer shall not be entitled to cancel the purchase or demand a proportional reduction or withholding of the purchase price, in whole or in part, as a result of defects or delays.
AD’s liability as a result of delay or defects shall not exceed an amount corresponding to 1% of the agreed payment for the delayed product/service for each full week that the delay persists or that passes until the defects have been remedied, and the compensation shall not exceed 10% of the agreed payment. AD’s obligation to pay compensation is in all circumstances limited to an amount equal to the buyer’s payments during the last 12 months preceding the event which gave rise to the claim, however, maximum DKK 500,000.00. AD’s liability for subcontractors’ and advisors’ product deliveries or services relating to any claim, including claims for defects, delay, product liability, etc. is limited to maximum the amount of compensation less any legal costs obtainable from the subcontractor/advisor concerned. The amount shall not fall due for payment until the dispute with the subcontractor has been settled.
In respect of product liability, AD shall only be liable for the damage caused by the delivered product/service if it can be proved that the damage was caused by errors or omissions on the part of AD. Beyond this, AD shall have no product liability in relation to the buyer and the buyer thus accepts that it cannot raise any claim against AD in that connection. AD shall never be liable for indirect damage or loss such as consequential loss or loss of profits. Liability for damage to other objects shall not exceed DKK 25,000,000.00 including interest and costs per claim. The buyer shall be under an obligation to inform AD in writing without undue delay if the buyer becomes aware of any damage caused by the purchased product, if a third party claims that such damage has occurred or if there is a risk of such damage occurring. If liability towards a third party is imposed on AD, the buyer shall be under an obligation to indemnify AD to the same extent that AD’s liability is limited under this clause.
11. Storage, etc.
When AD stores your items/ products/ fixtures/ AV equipment or other possessions of yours:
AD has no insurance covering your possessions against theft, simple theft, water damage or other damage. If you do not want to bear the responsibility yourselves or if you have arranged insurance coverage, please inform AD when you turn in your items so that a solution can be found.
When AD ships your items/ products/ fixtures/ AV equipment or other possessions of yours:
AD has no insurance covering your possessions during shipping. You must provide transport insurance yourselves, otherwise you accept to bear the full responsibility for any transport damage or transport loss that may occur.
When AD handles or installs your items/ products/ fixtures/ AV equipment or other possessions of yours:
When AD handles/ installs your possessions, AD takes no responsibility for any damage that may occur. AD takes responsibility for the items you have bought from AD, including installation.
Responsibility regarding drawings, measurements and other data provided by AD:
You are always welcome to contact AD for measurements or drawings related to your project. AD takes no responsibility for the measurements, drawings or other information unless it concerns a job that AD performs as a turnkey project for you. Your subcontractors are always welcome to contact AD, but they are responsible for any data provided.
12. Force majeure.
AD shall be exempt from liability for non-fulfilment or delayed fulfilment if this is caused by force majeure, war, riots, civil unrest, government intervention or intervention by local authorities, fire, strikes, lockouts, export and/or import bans, non-delivery or defective delivery from subcontractors, shortage of labour, fuel, lack of motive power or any other cause which is beyond AD’s control and which may delay or hinder production and delivery of AD’s service. In case non-defective or timely delivery is hindered temporarily due to one or more of the above circumstances, delivery shall be postponed for a period corresponding to the duration of the obstacle, and delivery at the postponed time of delivery shall thus be considered timely delivery. If it can be expected that the delivery obstacle will last for more than four (4) weeks, AD and the buyer shall be entitled to cancel the agreement without this being regarded as breach.
13. Technical matters.
Illustrations, specifications, and samples are not binding on AD. AD strives to constantly improve its products and therefore reserves the right to make changes to mechanical as well as technical specifications.
AD reserves the right to make changes, without prior notice, to the data provided by AD as a result of general changes to AD’s products or for technical reasons if this does not impair the object of sale in general or on a point of importance for the buyer and if such changes can be made without inconvenience to the buyer. AD shall as soon as possible notify the buyer of any such changes to the object of sale in relation to the data of which the buyer had knowledge at the conclusion of the agreement.
The buyer shall be entitled to clarify or change specifications if this takes place well ahead of the time of delivery so that AD is able to comply with these. AD shall be entitled to request payment by the buyer of all resulting extra costs in addition to the agreed purchase price. If a change of the specifications causes significant inconvenience for AD or a delay in delivery, AD may refuse to change the object of sale compared to the original agreement.
Drawings, specifications, descriptions etc. which are provided by AD for the buyer’s use of the object of sale shall remain AD’s property and shall not be passed on without written agreement with AD or otherwise used without prior written approval by AD.
Products and services delivered by AD are produced in accordance with AD’s instructions and standards for workmanship.
14. Reservation of ownership.
AD shall have ownership of the products/services delivered and ownership shall not pass to the buyer until the full purchase price and the costs incurred in connection with dispatch of the product have been paid by the buyer. Until then, the buyer shall not be entitled to resell the product or otherwise dispose of the product in a way which conflicts with AD’s reservation of ownership. AD shall be entitled to take back the product sold if the buyer does not fulfil its obligations in relation to such product.
15.Applicable law and venue.
The legal relationship between AD and the buyer shall be subject to Danish law. The court in Kolding shall be the legal venue. AD is entitled to let the dispute be settled by arbitration in accordance with the rules of arbitration of the Danish Institute of Arbitration in force at any time. The place of arbitration shall be Kolding.