Terms of sale and delivery – May 6th 2019
Unless otherwise expressly agreed in writing, the below terms shall apply to all offers, sales, deliveries and services from ANTIDARK ApS (hereinafter referred to as A), even if the buyer has stipulated other terms. Deviations from A’ terms shall only apply if A has agreed to this in writing.
Only written offers are binding on A. Offers are binding for 30 days unless a different term of acceptance is stated in the offer and otherwise subject to any changes to the underlying raw material prices, payroll costs, foreign exchange rates, taxes, tariffs etc. For smaller or larger quantities than the quantity offered, A reserves the right to changes in prices and time of delivery. A 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 A’ standards and from what is stated in the offer such special specifications shall be stated in writing and approved in writing by A. Otherwise, they shall not be binding on A.
An order from a buyer shall not be binding on A until A 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 ex works (EXW) (Incoterms 2015). If it is stated in the order confirmation that A charges a transport insurance fee of 0.25 % of the invoice amount the transaction shall be carried out in accordance with the delivery clause DDP. The buyer shall inspect the goods for damage and defects immediately upon receipt and report any of these to A without undue delay, see clause 9.
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 deli-very. A may demand a postponement of the time of delivery if:
a. The buyer wants modification of the product
b. There are delays in deliveries or services carried out or arranged by the buyer.
c. Work with the delivery has to be interrupted or is delayed due to a hindrance beyond A’s control which A could not reasonably have taken account of, avoided or overcome, or such hindrance exists at the sub supplier used by A for the performance of the agreement.
In case of delay in accordance with paragraphs a and b, A reserves the right to adjust the agreed price on the basis of the costs incurred by A in this connection or alternatively to cancel the agreement without the buyer obtaining remedies for breach or A incurring any liability in damages in relation to the buyer.
Unless otherwise expressly agreed, the price from A’s warehouse is applicable. The purchase sum is stated in DKK unless another currency is stated. All prices are exclusive of VAT and other taxes and trans-port, transport insurance, packaging and any installation. Deliveries not comprised by binding offers submitted shall be effected at the price applicable at the date of delivery.
A reserves the right to change the price if, after the conclusion of the agreement but before the time of payment, new or increased public taxes are imposed on A, including taxes for transport, terminal and port authorities, as a direct consequence of the agreed delivery. Other cost increases, including general price increases, are at A’ risk unless the cost increase is a consequence of war or war-like conditions or the consequences of such which A could not have foreseen or avoided or overcome. In this case, A shall be entitled to request a price increment as compensation for the cost increase.
6. Terms of payment.
Payment shall be effected according to the terms of payment applicable at any time and in accordance with A’s order confirmation and/or invoice conditions. If payment is not effected when due, penalty interest of 2.5 % per month commenced shall be calculated. In the event of late payment of the purchase sum, A reserves the right to suspend the settlement of this and any other transactions with the buyer at the buyer’s expense, including stopping the goods during shipment and instructing the carrier not to deliver the goods to the buyer until payment obligations and any security obligations have been fulfilled, without the buyer obtaining remedies for breach. In the event of breach by the buyer of these obligations A 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 (place of delivery is A’s warehouse unless otherwise ag-reed) the buyer shall immediately send a written complaint to A, see clause 9. The buyer is only entitled to cancel the transaction if the delay exceeds 10 working days and has caused the buyer significant inconvenience. If the delay concerns only part of the consignment the buyer shall only be entitled to cancel the part of the consignment which is delayed, still provided that the delay causes the buyer significant inconvenience.
If the delay concerns products manufactured according to the buyer’s instructions or if the products are not normally held in stock by A the purchase can only be cancelled if the purpose of the buyer’s purchase will be significantly defeated as a result of the delay.
A undertakes to remedy any documented defects in the products and services delivered by A which are caused by faults in material and/or workmanship, or to effect replacement delivery if the buyer has submitted a timely and proper complaint with observance of the provisions stipulated in clause 9 below. Unless otherwise specifically agreed with the buyer in writing, the quality of the products/ser-vices delivered shall be the standard of workmanship chosen by A. The presence on the market of a different and/or perhaps better quality than that delivered shall not be regarded as a defect in the product/service delivered. If the goods delivered are used more intensively than agreed or assumed at the conclusion of the agreement and if this results in breakage, damage or other problem 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.
A shall not be liable for any delay resulting from remedy or replacement.
A shall not be liable for any consequential loss, loss of profits or other indirect loss suffered by the customer.
A’s liability for defects ceases unconditionally 12 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 purchase agreement. The buyer shall immediately submit a complaint about defects identified during this inspection and about any delay, and the buyer cannot subsequently claim delay or defects which could have been identified during this 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 not, the buyer is not entitled to claim 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 A and collected by the customer at the customer’s expense with a view to examination by A of whether the complaint is justified and comprised by A’s remedy and replacement obligation. Return of products to A shall only take place according to agreement with A. If the complaint is justified A undertakes, within a reasonable time and at its own discretion, to either remedy the defect or make a replacement delivery of the same quality. If the buyer omits to fulfil the rules stipulated in these provisions the buyer shall not be entitled to invoke any remedies for breach by A.
10. Disclaimer and product liability.
Except for what is stated in clauses 7 and 8 regarding remedy or replacement delivery, A 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 full or partial proportional reduction or withholding of the purchase sum as a result of defects or delays. A’s liability as a result of delay, see clause 7, 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 and the compensation shall not exceed 10% of the agreed payment. In respect of product liability, A shall only be liable for the damage caused by the delivered pro-duct/service if it can be established that the damage is caused by a fault on the part of A, see the Danish Product Liability Act. Beyond this, A shall have no product liability in relation to the buyer and the buyer thus accepts that it cannot raise any claim against A in this connection. A shall never be liable for indirect damage or losses such as consequential loss or loss of profits. Liability for damage to other objects or persons shall not exceed DKK 5,000,000.00 including interest and costs per claim. The buyer shall be under an obligation to inform A 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 A, the buyer shall be under an obligation to indemnify A to the same extent that A’ liability is limited under this clause. A’ total liability to the buyer, irrespective of the basis of the claim, shall be limited to an amount corresponding to the buyer’s payments for the last 12 months prior to the event which gave rise to the claim, but maximum DKK 1,000,000.00. When A stores your items/ products/ fixtures/ AV equipment or other of your possessions: A has no insurance covering your possessions against theft, simple theft, water damage or other damages. If you don’t want to bear the responsibility yourselves or has arranged insurance coverage, please inform A when you turn-in your items so that a solution can be found. When A ships your items/ products/ fixtures/ AV equipment or other of your possessions: A 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 damages or transport loses that may occur.
When A handles or installs your items/ products/ fixtures/ AV equipment or other of your possessions: When A handles/ installs your possessions, A takes no responsibility for any damages that may occur. A takes responsibility for the items you have bought from A incl. fitting of the bought items. Responsibility regarding drawings, measurements and other data provided by A: You are always welcome to contact A for measurements or drawings related to your project. A takes no responsibility for the measurements, drawings or other information unless it concerns a job that A conducts as a turnkey project for you. Your subcontractors are always welcome to contact A, but they are responsible for any data provided to them.
11. Force majeure.
A shall be exempt from liability for non-fulfilment or delayed fulfilment of agreements if this is caused by force majeure, war, riots, civil unrest, government intervention or intervention by local authorities, fire, strike, lockout, export and/or import bans, non-delivery or defective delivery from sub suppliers, shortage of labor, fuel, lack of motive power or any other cause which is beyond A’s control and which may delay or hinder production and delivery of A’s service. In case of temporary hindrance of timely delivery free from defects due to one or more of the above circumstances, the delivery shall be postponed for a period corresponding to the duration of the hindrance and delivery at the postponed time of delivery shall thus be considered timely delivery. If it can be expected that the hindrance to delivery will last for more than 4 weeks, A as well as the buyer shall be entitled to cancel the agreement without this being regarded as breach.
12. Technical matters.
Illustrations, specifications and samples are non-binding on A. A strives to constantly improve its products and therefore reserves the right to make changes to mechanical as well as technical specifications.
A reserves the right to make changes, without prior notice, to the data provided by A as a result of general changes to A’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. A 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 A is able to comply with these. A shall be entitled to request payment by the buyer of all resulting extra costs in addition to the agreed purchase sum. If a change of the specifications causes significant inconvenience for A or a delay in delivery A may refuse to change the object of sale compared to the original agreement.
Drawings, specifications, descriptions etc. which are provided by A for the buyer’s use of the object of sale shall remain A’s property and shall not be passed on without written agreement with A or otherwise used without prior written approval by A.
Products and services delivered by A are produced in accordance with A’s instructions and standards for workmanship.
13. Reservation of ownership.
A shall have ownership of the products/services delivered and ownership shall not pass to the buyer until the full purchase sum 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 A’s reservation of ownership. A shall be entitled to take back the product sold if the buyer does not fulfil its obligations in relation to such product.
14. Applicable law and venue.
Legal relations between A and the buyer shall be subject to Danish law. The court in Odense shall be the venue of any disputes.