Terms and conditions of sale and delivery
1. Range of Application
1.1. Unless otherwise agreed in writing between the parties or as provided by mandatory legal provisions, these Terms and Conditions of Sale and Delivery shall apply to all agreements regarding deliveries from Rotek A/S.
1.2. These Terms and Conditions of Sale and Delivery shall have preference over any provisions stated in buyer's order/acceptance, including buyer's general conditions.
2. Offers and Prices
2.1. All prices are stated in Danish kroner (DKK), excl. VAT
2.2. Offers made by Rotek A/S shall lapse, unless written acceptance has been forwarded to Rotek A/S within 30 days from the date of the offer or within the period of validity stated in the offer.
2.3. All prices stated in price lists, catalogues, advertisements, etc. are for guidance only.
3.1. Delivery shall be ”ex works Rotek A/S”, cf. Incoterms 2000.
3.2. Dispatch of the goods shall take place for the account and risk of buyer. Rotek A/S shall not take out insurance to cover buyer's risk for the transportation.
3.3. All goods shall be dispatched by Rotek A/S to buyer in a way considered by Rotek A/S to be most appropriate.
4.1. I case Rotek A/S is unable to deliver in due time, Rotek A/S shall notify buyer of this and at the same time, if possible, provide buyer with information as to when delivery is expected to take place.
4.2. Unless the delay in delivery is caused by negligence on the part of Rotek A/S, the time of delivery shall be postponed to the extent it is deemed reasonably under the circumstances, after which Clause 4.3 shall apply correspondingly. The time of delivery shall be postponed regardless whether the cause for the delay should occur after the expiry of the originally agreed time of delivery.
4.3. In the event delivery is delayed for more than eight days and the delay is not caused by negligence on the part of Rotek A/S, buyer shall be entitled to forward a written demand for delivery to Rotek A/S and to set a final reasonable time limit of not less than eight days. Provided that Rotek A/S does not deliver the goods within the set time limit and this is not caused by negligence on the part of Rotek A/S, buyer shall be entitled in writing to terminate the agreement as to the delayed part of the delivery.
4.4. Rotek A/S shall not be responsible for any loss suffered by buyer, including loss on operations, loss of profits or other indirect losses as a result of the delay in delivery, and consequently Rotek A/S shall not compensate buyer for any such loss.
5.1. Buyer shall undertake to make a thorough inspection of the goods immediately after reception of the delivery with a view to establish whether the goods are defective or have hazardous characteristics.
5.2. Buyer shall undertake immediately after and not later than two years from the time of delivery to notify Rotek A/S in writing of any defects. Provided that such notification has not been given promptly by buyer, regardless whether buyer has discovered or should have discovered the defect, buyer shall not at a later stage be entitled to submit the defects.
5.3. Upon receiving the written notification from buyer according to Clause 5.2, Rotek A/S shall be entitled and obligated to remedy the defects, or at the discretion of Rotek A/S to make a replacement delivery without undue delay. Rotek A/S shall pay the costs in connection with the remedy of defects or the replacement delivery. In the event disassembly, assembly, etc. should have the effect that reparative measures needs to be taken with respect to other parts than the defective goods, the work and expenses in this connection shall be defrayed by buyer. Buyer shall pay any additional costs of Rotek A/S as to the remedy or replacement delivery due to the fact that the defective goods are not at the destination stated in the agreement or – if such destination is not stated – at the place of delivery.
5.4. In the event the defect is material and Rotek A/S does not fulfil its obligation according to Clause 5.3, buyer shall be entitled in writing to set a final reasonable time limit of not less than 28 days. Provided that Rotek A/S does not fulfil its obligation according to Clause 5.3 within the set time limit, buyer shall be entitled to terminate the agreement as to the defective part of the delivery.
5.5. Except for the obligation to remedy defects or make replacement deliveries according to Clause 5.3 and the obligation to repay any paid purchase price in case of termination, Rotek A/S shall not be liable for any defects or losses suffered by buyer, including loss on operations, loss of profits or other indirect losses as a result of the defects, and consequently Rotek A/S shall not compensate buyer for any such loss. However, this limitation shall not apply in the event of gross negligence on the part of Rotek A/S.
6. Product Liability
6.1. Rotek A/S shall only be liable for any damage caused by the goods on real property or movables, including goods manufactured by buyer, in the event of gross negligence on the part of Rotek A/S. Similar terms shall apply to damage caused by goods manufactured by buyer in which the goods form a part.
6.2. At no time shall Rotek A/S be liable for loss on operations, loss of profits or other indirect losses.
6.3.Buyer shall indemnify Rotek A/S to the extent Rotek A/S is held liable towards any third party for such damage and such loss, which Rotek A/S is not liable for towards buyer, cf. Clauses 6.2 and 6.3.
6.4. Provided that a claim for damages is raised by a third party against one of the parties according to his Clause, the party in question shall immediately notify the other party of this.
6.5.Buyer shall undertake that legal proceedings may be instituted against buyer at the court of law or the arbitration tribunal dealing with the claim for damages raised against Rotek A/S on the basis of a damage or a loss claimed to be caused by the goods or a product in which the goods form a part.
7. Terms of Payment
7.1.Payment shall be made in accordance with Rotek A/S' terms of payment valid at any time, 30 days net from delivery, unless other arrangements are entered.
7.2.In the event payment is not made in due time, default interest will be charged on the overdue amount at a rate of 1% per month or fraction of a month.
8. Retention of Title
8.1. The right of ownership of the goods shall not pass to buyer until payment has been made in full.
9. Clause regarding Deliveries to the Building Industry
9.1. To the extent the goods are to be used for the performance of work subject to AB92, the below stated Clause regarding deliveries to the building industry and the consequent extent in terms of time of Rotek A/S' liability for defects.
9.2.Rotek A/S’ liability for defects in the goods shall cease after a period of five years from the delivery of the work in which the goods form a part – however, not later than six years after delivery to buyer.
9.3. Provided that it is established to be impossible or extremely difficult to succeed in a claim regarding defects in the goods against Rotek A/S' customer or against subsequent buyer, Rotek A/S hereby accepts that such claim also may be raised directly against Rotek A/S. In such cases, Rotek A/S shall only be held liable for defects to the extent the goods are defective and furthermore to the extent as described in the contractual relationship between Rotek A/S and Rotek A/S' buyer.
9.4. Rotek A/S accepts in any case that Rotek A/S may be sued together with buyer and subsequent buyers in connection with the relationship between the parties. The case shall be tried at the Danish Court of Arbitration for Building and Construction Work.
10. Governing Law and Venue
10.1. Any disputes arising out of or in connection with this Agreement, the delivery and any related matters shall be settled in accordance with Danish legislation, and any legal matters in this respect shall be brought before the Danish Maritime and Commercial Court in Copenhagen, Denmark, unless another venue is chosen by Rotek A/S at its own discretion.