Conditions of sale.
General conditions of sale – Berrigarden GmbH
§ 1 - Scope of Applicability
- These General Terms and Conditions of Sale (“GTCS”) apply to all sales of goods by us notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other communication from you. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by us unless and until we expressly confirm our acceptance in writing.
- We reserve the right to change these GTCS at any time. Changes will be posted and made available on our website.
§2 - Offers, Purchase Orders and Order Confirmations
- Our offers are subject to change without notice and are subject to the availability of the goods offered. Our written confirmation of order exclusively determines the scope and content of contractual obligations. Collateral contracts, variations or extensions to this contract require our prior written confirmation.
- All purchase orders issued by you shall specify as a minimum the type and quantity of goods requested, applicable unit prices, delivery place and requested delivery dates. No purchase order shall be binding on us unless and until confirmed by us in writing.
- Without prejudice in our other rights to terminate this contract, we are entitled to rescind in the event of manifest mathematical or typographical errors in our offer or in written confirmation of order. All rights of the customer to compensation upon the exercise of this right of rescission are excluded.
§3 - Terms of Delivery and Late Delivery
- Information regarding delivery times is not binding, unless a binding date of delivery has exceptionally been agreed upon, in which case such binding delivery period will commence on the date of confirmation of order. However, such date will be postponed, until all terms of the contract have been clarified and the customer has fulfilled its contractual obligations. This applies, in particular, to any documents required to be produced by the customer and to the receipt of any agreed deposit. The delivery time shall be met, if the products have been dispatched, prior to the expiry of such delivery time.
- If we are responsible for a reasonable delivery date not being met, we shall only become liable, if the customer has provided us with a reasonable supplemental notice period of at least two weeks, together with a threat of rescission, and where this period has also expired. In these circumstances, the customer may terminate the contract. Customer claims for compensation are subject to § 8.1 below.
- In the event that the customer fails to promptly take delivery of products notified as being ready for transportation, we shall be entitled to store the products at the cost and risk of the customer, and require payment at the price or, after expiry of a reasonable additional period, refuse performance of the contract and demand compensation, on ground of failure to perform by the customer.
- We shall be entitled to deliver by instalments.
§ 4 - Transportation
- Transportation of the products takes place, unless otherwise agreed, at the cost of the customer and in an uninsured state.
- Transportation shall take place at the risk of the customer. This shall also apply in the unusual event of our having agreed to bear transportation charges.
- Risk passes to the customer immediately upon the products leaving our works. If transportation is delayed due to the conduct at the customer, risk shall pass upon our notifying the customer of our willingness to dispatch the product.
- Unless the customer has otherwise directed us, we shall determine the route of transportation, without accepting responsibility for the fastest or cheapest method of transportation. Claims for compensation arising out of failure
- to carry out a direction in relation to transportation, shall be excluded, other than in the event of fraud or recklessness.
- The customer shall immediately notify the freight forwarder of any damage or loss of product during transportation and arrange for the facts and documentation to be normally established in accordance with Danish Law.
§ 5 - Prices and Terms of Payment
- The customer shall be obligated to pay the price stated in our written confirmation of order, together with statutory VAT. All prices given by us, unless otherwise expressly agreed, shall be ex-works and shall exclude transport, freight insurance and packaging, impositions and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
- The price together with statutory VAT is payable within the agreed payment terms as specified on our invoice. We are entitled to issue separate invoices for deliveries by instalment.
- If payment is not made in accordance with § 5.2, we may charge you interest from the due date to the date of payment at the rate of 1,8 % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which we are or may be entitled at law or in equity. In addition we shall be entitled to demand prepayment or security, at our discretion, in relation to all outstanding deliveries, for the duration of any delay in payment by the customer.
- Unless expressly stated otherwise in our order confirmation, payment for goods shall be made without offset or deduction.
- You must submit such financial information from time to time as may be reasonably requested by us for the establishment or continuation of payment terms. We may at our sole discretion at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
- All products delivered shall remain our property until the customer has paid us all sums arising out of our legal relations whether due now, or at any time in the future. The customer is obligated to treat the products with reasonable care. In the event of third party claims, including the levying of distress, the customer shall be obligated to notify us immediately in writing, in order that we may take the necessary steps to protect our rights. In so far as a third party is not in a position to pay all legal or litigation and legal charges of such a claim, the customer shall be liable for any resulting shortfall.
- Title to goods delivered shall remain vested in us and shall not pass to you until the goods have been paid for in full. If you fail to pay any invoice within fourteen calendar days of the due date of payment, we may retake the goods covered by the invoice. You must insure all goods delivered to their full replacement value until title to the goods has passed to you.
- In the event that the customer shall be in breach of § 5.1 above, or shall be in default as regards payment, we shall be released of the contract, unless otherwise expressly stated in writing. After recovery of the product, we shall be entitled to effect their realisation; the net proceeds of sale less reasonable costs of realisation shall be credited against any sums due from the customer. Our obligation to deliver shall be suspended pending cessation of the circumstances set out in § 5.6.
- As security for the payment of all current and future sums due from the customer, the customer hereby assigns all its book debts in relation to the sale of the products to its purchasers or third parties, to the level of the gross invoice inclusive of VAT, together with all associated rights. The customer remains entitled to recover these book debts. He shall hold all such receipts on trust for us and forward such sums to us in satisfaction of our invoices. However, this is without prejudice to our own right to recover such book debts ourselves. We shall be obligated, however, not to recover such book debts for so long as the customer meets its payment obligations from the sums received, does not delay effecting payment and, in particular, does not go into
General conditions of sale – Berrigarden GmbH
liquidation, enter into a composition with creditors, become subject to execution of legal process against its general assets, or cease to effect payment to creditors. If this occurs, we shall be entitled to insist upon the customer notifying us of its assigned book debts and of their debtors and require it to provide its with all necessary information to recover such book debts, as well as deliver up all necessary documents and require it to notify the third parties of the assignment and the extent of our outstanding invoices.
10.In the event that the value of the products subject to retention of title, together with all other securities taken by us, exceeds our book debts against the customer by more than 20%, we shall be obliged to release one or more of such securities to that extent, at our election, if so required by the customer.
§ 6 Defects, warranties, liabilities and claims
- Unless otherwise agreed, any product delivered by us will only be defective in such cases:
- Where an order has been placed after testing a satisfactory examination of a sample previously made available to the customer, if the state or condition of the product does not correspond to such sample. - Where an order has been placed on the basis of an agreed product specification, if the analysis report by us in the product, or state or condition of the product delivered, does not correspond to such product specification.
In either case impairing the use of the product, as envisaged under this contract.
- The customer has to properly comply with its obligations to examine and notify defects prior to 24 hours after receipt of the product. Independent of the requirement, the customer is liable and indeed obliged to us to test whether the products delivered by us satisfy all applicable legal regulations (in particular food regulations) and all other applicable guiding principles and technical norms by reference to the proposed purpose or use of the products, by undertaking appropriately comprehensive goods inward controls (including, in particular, appropriate state of the art chemical analysis) and to ensure that the products are only processed, repacked or passed onto third parties if such goods inward controls reveal no errors or defects. The preceding sentences shall not result in an extension of the intended warranty and agreed state or condition of the product, as set out in our delivery conditions and other agreements with the customer. If the customer does not meet its obligation to carry out such comprehensive goods inward control, or does not fully carry it out, all compensatory claims of the customer shall be excluded, in respect of losses which would not have occurred without such breach of obligation. This shall also be the case if the customer processes products delivered by us or passes them to third parties without waiting for a test of characteristic features as to state or conditions of the product, exceptionally, agreed to be undertaken by us in this individual case. The same shall apply if the customer passes the products on to third parties or processes the products, despite the testing carried out by us or the goods inward control to be carried out by the customer revealing that the product does not correspond to the intended purpose or use of the product.
- In the event of a product being defective, we shall be entitled at our discretion either to make good the defect or to supply a replacement product. Thereafter, the customer shall only be entitled to terminate the contract or require a reduction in the contractually agreed price, at its discretion, if: - the making good or delivery of a replacement is impossible - the making good or delivery of a replacement product does not take place within a reasonable period - the making good or delivery of a replacement product is refused without due cause; or - the making good or delivery of a replacement product has been delayed unreasonably And provided, that such goods must be returned to us, along with acceptable evidence of purchase, within fourteen calendar days after you discovered the lack of conformity or ought to have discovered it.
All liability for loss or damage to other assets or legal rights of the customer arising from the defect including loss of profit
etc. is excluded. Claims for compensation are also excluded in the event of a negligent breach of our obligation to make good or deliver a replacement product, including losses arising out of the unpunctual carrying out of this obligation.
- Liability for consequential loss is excluded i.e. any diminution in value of the product together with any loss of profits caused by the breach of warranty as to quality.
- Neither of us will be entitled to, and neither of us shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, recall costs, reprocurement costs, injury to reputation or loss of customers. Your recovery from us for any claim shall not exceed the purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
- We shall not be liable for any claims based on our compliance with your specifications or instructions, modification or alteration of any goods by parties other than us or use in combination with other goods.
- The customer is obliged to indemnify us against compensation claims of its purchaser relating to the condition or state of the products distributed by the customer if and so far as the customer has contributed to arising of such damage or loss.
- The customer must immediately notify us in case they receive any claims from third parties related to the use of our products
§ 7 - Miscellaneous
- Place of performance for all contractual obligations shall be legal seat of our business.
- No waiver of any provision of these GTCS shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these GTCS shall not constitute a waiver of such provision or any other provision(s) of these GTCS.
- Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.
- These GTCS and all contracts of sale entered into between us shall be governed by and construed in accordance with the laws of Denmark without giving effect to any choice of law or conflict of law provisions. Any suits, actions or proceedings that may be instituted by either of us against the other shall be instituted exclusively before the competent courts of Denmark, however, without prejudice to our right to bring suits, actions or proceedings in any other court which would have jurisdiction if this provision had not been incorporated into these GTCS.
§ 8 Force Majeure
- If we are prevented from delivery on account of force majeure e.g. by war, the date of delivery shall be extended automatically for such period as force majeure has an effect upon performance, together with an additional reasonable period. Force majeure shall include all unforeseeable circumstances not within our responsibility, which lead to delivery either becoming temporarily impossible or unreasonably difficult to achieve. Examples include delay by our intended suppliers, industrial dispute, administrative acts, energy shortage and raw material shortage, essential business interruptions where caused either by destruction of the business as a whole or of important sectors, or by the loss of essential production plant or serious transport interruptions e.g. by roadblocks, industrial dispute in the transport industry, energy shortages or prohibition of driving. If any of these events continue for a period exceeding four months, we shall be entitled to terminate this contract. Upon demand of the customer at the end of such period, we shall be obligated to declare whether we shall terminate the contract or deliver.