Terms and Conditions
1.1 Buyer means the company buying Products from Seller as specified in Seller’s order confirmation or in the relevant Contract.
1.2 Contract means the agreement between the Seller and the Buyer as regards the sale of Products to Buyer, including these Terms.
1.3 Product shall mean any chimney, product or equipment to be delivered from Seller to Buyer.
1.4 Seller means Kecon A/S (SSM A/S), company registration no. (CVR no.) 21825832.
1.5 Tender means any tender or offer to sell Products provided by the Seller to the Buyer.
1.6 Terms means these Terms and Conditions of Sale.
2.1 These Terms shall apply to all sales and Tenders made by Seller to Buyer unless the parties have agreed otherwise in writing.
2.2 Seller shall not be bound by conflicting purchasing conditions or reservations made by the Buyer even if Seller has not explicitly objected to the Buyer’s conditions or reservations.
2.3 The terms and conditions of AB 92 (General Conditions for the provision of works and supplies within building and engineering issued by the Danish Ministry of Housing) shall apply with respect to matters that are not regulated by these Terms or the Contract. In case of any discrepancies between these Terms and AB 92, these Terms shall prevail.
3 Prices and payment
3.1 All prices and Quotes exclude VAT and other taxes.
3.2 Prices are based on present material, purchasing and freight costs. In the event of an increase of more than 10 % in any of the aforementioned factors within the period between the conclusion of the Contract and the time of actual delivery, the Seller reserves the right to adjust the prices to reflect such changes.
3.3 Unless otherwise agreed in writing, payment terms shall be 10 working days from date of invoice. If Buyer does not pay on time, Buyer shall pay interest in the amount of 2% per commenced month. Buyer shall not be allowed to withhold (or set off any amount against) any due payments even if he has objections or counterclaims against Seller.
4 Retention of title
4.1 Seller shall retain ownership of any Products until the Products are fully paid for.
5.1 Buyer shall accept a Tender no later than 30 days from the date of the Tender (the “Tender Period”) unless otherwise agreed in writing.
5.2 The Tender is subject to all necessary technical data being available in the agreed timeframe and compliance with the provisions of the agreed terms of payment. If any underlying conditions or assumptions of the Tender change during the Tender Period Seller reserves the right to change the Tender to reflect such changes, for example in case of increased raw material prices.
5.3 The Tender is based on Sellers usual processes and principles with respect to workflows and detailed solutions. All solutions shall be made in a good and workmanlike manner in accordance with the generally accepted standards in the industry.
5.4 The Buyer must accept (or reject) the entire Tender and the Tender cannot be partly accepted.
5.5 If the Seller shall deliver manufacturing drawings as part of the Tender, only one revision of the drawings shall be included in the Tender price.
6 Delivery and delay
6.1 Unless the parties have agreed otherwise in writing the Products shall be delivered Ex Works (Incoterms 2010).
6.2 If, instead of a specified delivery date, the parties have agreed a period within which to make the delivery, said period will run from the date of entering into the Contract.
6.3 The Seller will always strive to meet the agreed delivery time. If the Seller finds he is unable to meet the agreed delivery date, or if a delay on his part is likely, he must without undue delay notify the Buyer thereof, stating the cause of the delay and, if possible, the new expected delivery date. Buyer must accept such delay unless the Seller has explicitly guaranteed delivery at a specific date.
6.4 If the Buyer has not in due time delivered drawings, specifications or other information to Seller which is necessary for the Seller’s delivery of the Product, or if the Buyer wants to change the delivery, the Seller hall be entitled to extend the delivery time by a period considered reasonable under the circumstances.
6.5 If the delivery of the Product is being hindered or delayed for other reasons, the Buyer shall not be entitled to any compensation unless the Seller has explicitly agreed to this.
6.6 If the Buyer finds he is unable receive the Product on the agreed date, or if a delay on his part is considered likely, he must without undue delay notify the Seller thereof in writing, stating the cause of the delay and, if possible, the date the Seller can expect the Product can be received. If the Buyer fails to receive the Product on the agreed date, he is still obligated to make any payment pertaining to the delivery, as if the Product had in fact been delivered. The Page 3 of 6 Seller shall store the Product at the Buyer’s expense and risk. If the Buyer so requires, the Seller shall insure the equipment at the Buyer’s expense.
6.7 If the Buyer has been unable to receive the Product for more than 30 days the Seller may request in writing that the Buyer receive the equipment within a reasonable deadline. If, for reasons not attributable to the Seller, the Buyer fails to comply within said deadline, the Seller may through written notice to the Buyer cancel the Contract with respect to the part of the equipment that is ready for delivery, and which because of the Buyer’s default has not been received. In that case, the Seller is entitled to compensation for damages incurred due to the Buyer’s negligence. The amount of compensation shall not exceed the part of the purchase price pertaining to part of the Products or equipment that was not received.
7 Working Conditions
7.1 If the parties have agreed that Seller shall erect the Product at Buyer’s premises, Buyer shall ensure that erection can be carried out under conditions which comply with applicable laws and regulations for working conditions at the site. The Buyer shall inform the Seller by written notice of the safety regulations in force on the site. Further, the Buyer shall at his own expense on or near the site provide satisfactory facilities for the Seller’s personnel for changing, washing and eating. The Buyer shall also ensure that the Seller’s personnel are provided with board and lodging close to the site in accordance with the applicable collective labour agreements, regulations or as specified in the Contract.
7.2 The construction or erection of the Product may depend on the weather conditions. Seller has the right to postpone the construction or erection if in Seller’s professional opinion the weather conditions are not appropriate. Wind speeds of 8 meters per second or more will normally hinder the erection. Seller is never responsible or liable for delays caused by the weather conditions.
8 Warranty and Defects
8.1 The Seller warrants that the Products are of sound material and workmanship and conform to the Product information that applies at the date of the Contract. This Clause 7 provides the only warranty for the Products, and it replaces and supersedes all other warranties for the Products, whether express or implied.
8.2 If the Product is defective, Buyer must make a written claim against Seller documenting the alleged defect as soon as possible and within 5 days of the date when the Buyer first became aware or could reasonably have become aware of the defect. If the Buyer fails to notify the Seller accordingly, Seller shall not be entitled to claim compensation or any other remedies.
8.3 If the Product is defective, and provided the Seller is responsible for the defect, the Seller must at his own option either i) repair the Product himself or via a third party, ii) replace the Product or iii) pay the costs of purchasing equivalent Product(s), however the Seller is not obliged to pay any amount above the invoiced price for the Products. The Buyer is not entitled to any other remedy once the Seller has repaired or replaced the Products or paid the costs of purchasing equivalent Products elsewhere.
9 Limitation Period
9.1 Seller’s warranty for the Products as stated in Clause 7 above shall lapse after 12 months from the date of the first commissioning/use of the Product. Notwithstanding the foregoing, Buyer shall have no claim against the Seller, in contract or in tort, based on warranty or in relation to anything performed or delivered under the Contract (including claims for defective Products or services) unless the Seller has been notified in writing within 24 months from the date of delivery.
9.2 To the extent possible under the Danish Product Liability Act, the Seller is not liable for damage to real or personal property caused by defective products.
10 Product Liability
10.1 Seller is only liable for personal injury caused by defective Products in accordance with the mandatory rules of the Danish Product Liability Act.
10.2 To the extent possible under Danish law the Seller shall not be liable for damage to real property or movable property caused by defective Products. If Seller is liable towards a third party for such damages, Buyer shall indemnify Seller for any such claims.
11 GENERAL LIMITATION OF LIABILITY
11.1 THE SELLER’S LIABILITY TO THE BUYER, INCLUDING LIABILITY FOR DELAY, DEFECTS AND PRODUCT LIABILITY, SHALL IN NO EVENT EXCEED THE INVOICED PRICE FOR THE PRODUCT TO WHICH A GIVEN CLAIM RELATES.
11.2 IN NO EVENT IS THE SELLER LIABLE FOR OPERATING LOSS, LOSS OF EARNINGS OR OTHER INDIRECT LOSS.
12 Drawings and other documents
12.1 All drawings and other technical documents regarding the Products submitted by the Seller to the Buyer shall remain the property of the Seller unless the parties have agreed otherwise in writing. Drawings, technical documents and other technical information received by the Buyer may not, without the consent of the Seller, be used for any other purpose than that for which they were submitted. They may not without the consent of the Seller be copied or reproduced.
12.2 If the Buyer has instructed the Seller to manufacture the Product according to drawings provided by or approved by the Buyer, the Seller shall have no responsibility for such drawings.
12.3 The Seller shall, not later than by the taking over of the Product, free of charge provide the Buyer with one copy or such larger number of copies as may have been agreed, of drawings and other technical documents, which are sufficiently detailed to permit the Buyer to carry out commissioning, operation and maintenance, including running repairs, of the Product.
13 Technical guidance and information
12.1 If Seller has delivered technical assistance or advice to Buyer at no charge, such assistance or advice shall be considered “to the best of our knowledge” guidance only and shall not be relied on by Buyer. Seller shall not be liable for such guidance.
12.2 All information provided by Seller, except specifications on Products, shall be considered information delivered to the best of Seller’s knowledge. Seller shall not be liable for such information.
14 Security for payments
14.1 If Seller cannot obtain customary credit insurance concerning its payment claims against the Buyer via Seller’s normally used credit insurance company, then Buyer shall at Seller’s request and on Buyers’ cost provide a bank guarantee or appropriate security that will guarantee timely payments from Buyer to Seller.
15 Quality procedure
15.1 The manufacture, construction and erection will be carried out in accordance with Seller’s standard quality assurance and quality control procedures.
16 Company information and figures
16.1 Seller shall in its sole discretion decide if and to which extent Seller will reply to any requests from Buyer concerning Seller’s business and accounts.
17 Force majeure
17.1 The following circumstances are to be regarded as force majeure if they prevent the fulfilment of the Contract or make fulfilment unreasonably difficult: Strikes and any other circumstances beyond the Seller’s control such as fire, war, mobilization or unforeseen military inductions of a corresponding scope, currency restrictions, riots and disturbances, shortage of means of transport, general shortage of goods, restrictions on power supply and deficiencies in deliveries from subcontractors or delays of said deliveries.
17.2 In case of force majeure the Seller shall without unreasonable delay notify the Buyer when the force majeure arises as well as when it is expected to end.
17.3 Regardless of whatever else is set forth in these Terms, any of the parties may terminate the Contract by written notice to the other party if the fulfilment of the Contract will be delayed more than 8 months due to force majeure as defined above.
18 Law and venue
18.1 The Contract shall be governed by and construed in accordance with the laws of Denmark excluding any provisions of law that would lead to the application of any law other than Danish law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to the Contract.
18.2 In the event of any dispute or difference arising under or in connection with the Contract (including a dispute or difference as to the validity of the Contract), such dispute or difference shall be referred to and resolved according to the judgment of the Danish Maritime and Commercial Court in Copenhagen (“Sø- og handelsretten i København”) and the parties submit to the exclusive jurisdiction of that court. Notwithstanding the foregoing, if Seller deems it appropriate under the circumstances, Seller shall have the right to decide that the dispute or difference shall be referred to Danish Building and Construction Arbitration Board (Voldgiftsnævnet for Bygge- og Anlægsvirksomhed - www.voldgift.dk).