1.1 The present Terms of sale and delivery shall apply to the extent that they have not been deviated from through written agreement. The buyer’s purchasing terms shall not apply unless accepted in writing by Hydraflex A/S (hereinafter referred to as HYD).
1.2 The terms of sale and delivery shall be forwarded to the buyer and shall apply to all orders effected after the date of forwarding.
1.3 HYD shall be entitled to change the terms of sale and delivery with immediate effect.
1.4 HYD’s products are only designed and made for commercial use and must not without HYD’s written consent be used in or integrated into objects which are not used commercially.
1.5 All intellectual property rights, drawings, sketches, technical specifications, etc., shall belong to HYD and must not be copied or handed over to any third party without prior acceptance from HYD. Nor must the products delivered be made, copied or handed over to a third party with a view to this. Unless otherwise expressly agreed the parties’ agreement does not involve any transfer of intellectual property rights.
2 OFFER AND ACCEPTANCE
2.1 HYD’s offers shall apply for 30 days from the date of the offer unless otherwise stated. The buyer’s orders and requests HYD’s offers shall apply for 30 days from the date of the offer unless otherwise stated. The buyer’s orders and requests shall not be binding for HYD until the buyer has received written order confirmation.
3.1 Unless otherwise agreed, the price shall be stated exclusive of VAT and duties and in Danish currency.
3.2 All prices are exclusive of packing, freight, VAT, customs duties, or other public duties.
3.3 The price is stated subject to changes considering documented changes to prices for materials, prices from sub- suppliers, changes to public duties, exchange rate changes, changes to wages and salaries, etc.
3.4 If such price changes occur, HYD shall without undue delay inform the buyer accordingly. The buyer may within 7 days from receipt of that information on the price increase cancel the agreement without being considered in default. If the buyer does not cancel the agreement within the 7 day period, the price increase is to be considered as accepted by the buyer.
3.5 Notwithstanding paragraph 3.4 HYD shall – after the buyer’s accept – be entitled to regulate the price in case of documented changes to exchange rates, public duties, customs duties, etc., which lead to an increase in HYD’s costs without the buyer has the right to cancel the agreement.
3.6 If the delivery is changed, or if HYD’s costs are otherwise increased because of the buyer’s circumstances, HYD shall in the same manner be entitled to regulate the agreed price in the same extent.
4.1 Delivery shall be ex works HYD’s place of business, cf. Incoterms 2010, unless otherwise expressly agreed.
4.2 The products bought shall be forwarded at the buyer’s expense and risk.
4.3 Delivery up to 30 days after the date of delivery stated in the order confirmation shall be considered delivery on time.
4.4 If delivery is delayed for more than 30 days, the buyer shall be entitled to rescind the contract unless the products purchased have been reported ready for dispatch before HYD has received written information about the buyer’s intention to rescind. The buyer cannot raise any claim of any kind against HYD in case of a delay.
4.5 The buyer shall not be entitled to reject part delivery.
5 BARRIERS TO DELIVERY
5.1 The following circumstances shall lead to exemption from liability, if they prevent the fulfilment of the agreement or make fulfillment unreasonably onerous: Labour market dispute and any other circumstance beyond the parties’ control, such as fire, war, mobilisation or military drafting, application and seizure, currency restrictions, riot, unrest, lack of means of transport, general shortage of goods, restrictions on fuel, and defects in or delays of deliveries from sub-suppliers.
5.2 If delivery without defects or on time is prevented temporarily through one or more of the above circumstances, delivery shall be postponed for a period corresponding to the duration of the prevention plus a period which is reasonable according to the circumstances for normalising the conditions. Delivery on the thus postponed date shall in every respect be considered delivery on time. If the barrier to delivery can be expected to last for more than 12 weeks, both HYD and the buyer shall be entitled to cancel the agreement without being considered in default.
6 PAYMENT/RESERVATION OF PROPERTY
6.1 The terms of payment shall be net cash, unless otherwise agreed.
6.2 In case of late payment, the purchase amount shall carry interest at 1.5% per month or fraction thereof.
6.3 The products delivered shall remain HYD’s property until payment of the full amount has been made, including interest and costs incurred.
6.4 Complaints regarding deliveries shall not entitle the buyer to withhold payment for deliveries already made, and conse quently the buyer’s withholding of amounts due shall be considered default.
6.5 Does the buyer have a claim which can be set off against the purchase price the buyer is only entitled to set off after HYD’s prior written consent.
7 LIABILITY FOR DEFECTS
7.1 The buyer shall check and examine the supply immediately on receipt. In case of defective delivery, HYD shall be informed in writing immediately. The buyer shall not later be entitled to claim defects which were or ought to have been discovered through such examination. This shall also apply if the buyer does not immediately complain about hidden defects discovered at a later date.
7.2 HYD has the right to remedy any defects which are due to defects in materials and/or the manufacturing by/of the delivered products. Remedying shall either be in the form of delivery of new products or, at HYD’s option, by repair.
7.3 If replacement or repair will lead to disproportionate costs, HYD shall, however, be entitled instead to grant a proportional reduction in the purchase amount corresponding to the decrease in value of the delivered.
7.4 HYD’s liability for defects is always limited to either after HYD’s own choice to make replacement, repair or to grant the buyer a proportional reduction in the purchase amount. The buyer has no other remedies according to violation against HYD.
7.5 In connection with repair and replacement, the buyer shall on their own account make sure that the defective product is made available to HYD at HYD’s place of business. Returning of the defective product and forwarding of a new or repaired product to the buyer shall be made at the buyer’s expense and risk. Furthermore, labour costs and other consequential costs are not included in HYD’s obligations towards the buyer.
7.6 Components replaced shall belong to HYD.
7.7 HYD’s liability for newly manufactured cylinders and pump units shall only cover defects found within 24 months from HYD’s delivery to the customer. For repair and renovation work HYD’s is only liable for defects found within 3 months from delivery to the customer unless otherwise agreed in writing.
7.8 HYD cannot in any case be ordered to cover consequential damage, liquidated damages, day fines, operating loss, time loss, loss of profits, or any other indirect loss, and HYD shall not be liable for any consequential loss and costs of demounting and remounting the objects in which the product sold may have been integrated.
7.9 HYD’s liability shall in no case exceed an amount corresponding to the invoice value exclusive of VAT for the defective product.
7.10 Changes to or intervention in the product sold without HYD’s written consent shall release HYD from any liability for the product.
8 PRODUCT LIABILITY
8.1 HYD shall be liable for injury only to the extent which is a consequence of mandatory law.
8.2 HYD shall not be liable for damage to real property and goods belonging to the buyer or a third party or damage which occur while the products delivered are in the buyer’s possession.
8.3 HYD shall not be liable for damage to products made by the buyer or products in which the buyer’s products are included, or for damage to real property or goods caused by the buyer’s products as a consequence of HYD’s supply.
8.4 HYD shall in no case be liable for consequential damage, liquidated damages, day fines, operating loss, time loss, loss of profits, or any other indirect loss.
8.5 To the extent that product liability is imposed on HYD towards a third party, the buyer shall be obliged to indemnify HYD to the same extent as HYD’s liability is limited as mentioned above.
8.6 If a third party makes a claim for product damage, HYD shall immediately be informed. The buyer shall be obliged to accept legal action against them at the court or arbitral tribunal dealing with claims for compensation put forward by a third party against HYD because of damage or loss claimed to have been caused by the supply.
9 GOVERNING LAW AND VENUE
9.1 If one or more paragraphs of these terms of delivery is declared invalid, illegal or unenforceable none of the remaining paragraphs validity, legality or feasibility affected or impaired thereof.
10 GOVERNING LAW AND VENUE
10.1 Any dispute between the parties shall be settled according to Danish law, with the exception of Danish rule of private international law. Any dispute shall be settled at the Court in Viborg which is the only proper venue.
Viborg, September 2014