Gerhardt Christensen A/S
GENERAL TERMS AND CONDITIONS
List of contents
1. Scope 3
2. Contracting 3
3. Product 3
4. Authorisation 4
5. Prices 4
6. Terms of delivery 4
7. Shipping and insurance 5
8. Terms of payment 6
9. Guarantee/liability 6
10. Force majeure 7
11. Duty to give notice and duty of inspection 8
12. Product liability 8
13. Product information 9
14. Fitting and service 9
15. Protection of rights 10
16. Drawings and descriptions 10
17. Choice of Law and Venue 11
1.1 Any delivery from Gerhardt Christensen A/S, Danish CVR no. 33 77 55 20, (in the fol-lowing: “Gerhardt Christensen”) is subject to these General Terms and Conditions, which are binding to all deliveries between the Parties and thereby set aside all agree-ments and customs contrary to the General Terms and Conditions, including conditions drafted and forwarded by the Buyer, unless otherwise stated in the order confirmation forwarded by Gerhardt Christensen.
2.1 Gerhardt Christensen will not be bound by the representations made by Gerhardt Christensen, howsoever characterised, until Gerhardt Christensen has sent its order conformation. Gerhardt Christensen is entitled to withdraw the representations made by Gerhardt Christensen until the order confirmation has been communicated to the Buyer.
2.2 The Buyer will be bound by its offer when Gerhardt Christensen’s order confirmation has been communicated to the Buyer. If the Buyer has any objections against the for-warded order confirmation, the Buyer must give notice thereof in writing 5 days after receipt of the order confirmation at the latest.
2.3 The Buyer may cancel an entered agreement if all conditions in this Clause are fulfilled:
2.3.1 Gerhardt Christensen has not commenced production of the order;
2.3.2 Gerhardt Christensen has not made agreements with its sub-supplier(s);
2.3.3 The Buyer pays 10 percent of the purchase amount, however, DKK 5,000 as a minimum, to Gerhardt Christensen.
2.4 The conditions must be fulfilled at the time of Gerhardt Christensen’s receipt of the Buyer’s request for a cancellation.
3.1 The product will be manufactured and delivered under EU standards unless otherwise separately agreed between the Parties. The product will be delivered with an instruction manual.
3.2 In connection with the execution of the order, Gerhardt Christensen reserves the right to make all changes which are considered necessary for technical reasons.
3.3 The manufacturing of the order will not start until all drawings forming the basis for the manufacturing has been approved by the Buyer in writing.
4.1 No independent person/company, e.g. agents, representatives or brokers, are author-ised to bind Gerhardt Christensen without a written separate agreement to that effect.
5.1 All prices, including prices quoted in the price lists drafted by Gerhardt Christensen, are current prices, excluding VAT, other public taxes and shipping packaging. Gerhardt Christensen reserves the right to change price lists and catalogues without any prior notice.
5.2 The price is exclusive of any work performed as a result of defective material delivered from the Buyer, overtime incurred as a consequence of requirements for a faster exe-cution of the order than usual and the storage of finished work.
5.3 In case of increases prior to the delivery of more than 2 percent in the manufacturing and delivery costs and in supplier prices during the period, Gerhardt Christensen is en-titled to regulate the price of such documented cost increases.
5.4 Further, the price is based on the exchange rates applying at the time of the placing of the order. Consequently, in case of exchange rate fluctuations of more than 5 percent, Gerhardt Christensen is entitled to regulate the price accordingly.
6. Terms of delivery
6.1 Deliveries are made on Gerhardt Christensen’s place of business. Delivery is subject to Incoterms 2000 EXW, whether Gerhardt Christensen’s own staff or third parties deliver the sold items to the Buyer under a separate agreement with the Buyer.
6.2 The time of delivery runs from Gerhardt Christensen’s receipt of the Buyer’s notice that the manufacturing drawing has been approved, see Clause 3.3.
6.3 If the delivery is conditional upon any other information to be provided by the Buyer, the time of delivery runs from the date of Gerhardt Christensen’s receipt of such infor-mation.
6.4 In case of any delay in delivery, Gerhardt Christensen is obligated to inform the Buyer thereof. Gerhardt Christensen is not liable for delays of less than 4 weeks. In case of delays of more than 4 weeks, the Buyer is entitled to liquidated damages of 0.5 percent of the contractual amount per full week of delay, however, not exceeding 7.5 percent of the contractual amount. The Buyer is not entitled to any further remedies as a result of the delay.
6.5 If the Buyer does not take delivery at the time of delivery, including fails to perform its duty of collection, Gerhardt Christensen is entitled to terminate the agreement and raise claims for damages. Further, Gerhardt Christensen is entitled to sell off or store the products for the Buyer’s account. In case of storage, the products will be stored for the Buyer’s risk.
6.6 The return of products and packaging is conditional upon a prior written agreement, and if so, it will be for the Buyer’s account. Pallets, boxes and other packaging debited sep-arately will not be credited.
7. Shipping and insurance
7.1 All consignments are for the Buyer’s account and risk. The Buyer undertakes to arrange for fire and liability insurance of the sold items covering at least the purchase amount, applying from the time of delivery of the items and until the purchase amount has been paid.
7.2 If the Buyer fails to provide documentation for due insurance policies under this Clause 7 and Clause 12 below 7 days upon demand thereof, Gerhardt Christensen is entitled to take out the necessary insurance policies for the Buyer’s account.
8. Terms of payment
8.1 The terms of payment are net cash 14 days from delivery of the product.
8.2 Gerhardt Christensen is entitled to demand satisfactory security of the timely payment of the purchase amount at any time.
8.3 If a delivery is postponed due to the Buyer’s conditions, the Buyer is obligated to make all payments to Gerhardt Christensen as if delivery had been effected at the agreed time.
8.4 Any delay in payment carried an addition of interest of 2 percent per commenced month will be added with a monthly addition of interest calculated from the due date until the time of payment. Gerhardt Christensen also collects a dunning charge of DKK 150 per reminder.
8.5 The Buyer’s payments will be appropriated to interest and costs in advance and then to the principal amount.
8.6 Products are sold subject to ownership reservation, under which Gerhardt Christensen is entitled to take back the sold items, if the sold items can be separated, in case of the Buyer’s breach of its payment obligations in full or in part.
8.7 If the Buyer commits breach of one or more of the stated obligations, including its obli-gations under this Clause, Gerhardt Christensen is entitled to terminate the Agreement, sell the products for the Buyer’s account to another party on/or to claim damages. Ger-hardt Christensen is entitled to claim damages for any loss, including indirect loss.
8.8 The Buyer is not entitled to set off the purchase amount or any part thereof, and fur-ther, in case of the Buyer’s complaints under Clause 11, the Buyer is not entitled to hold back the purchase amount.
9.1 The guarantee only covers products which are demonstrably materially defective result-ing from faulty manufacture or the application of poor material delivered by Gerhardt Christensen. The guarantee only applies if the products are duly stores, and if the Buy-er has used the products correctly and for their normal purpose under Gerhardt Chris-tensen’s specifications. Gerhardt Christensen is not liable for faults and defects result-ing from defective maintenance, incorrect fitting by the Buyer, changes made without Gerhardt Christensen’s written approval or faulty repairs made by the Buyer.
9.2 If products or parts of products contain non-Gerhardt Christensen manufactures, Ger-hardt Christensen will only be liable if Gerhardt Christensen’s supplier has assumed a guarantee, without regard to this clause – Clause 9.
9.3 If the product is materially defective, Gerhardt Christensen is – at own choice – obligat-ed and entitled to repair the defect, redeliver, grant a proportionate price deduction or pay damages. The Buyer is not entitled to any further remedies. Any costs of transport, insurance, travel, fitting and other remedy or redelivery costs will be paid by the Buyer. Gerhardt Christensen’s liability in damages is maximised to the invoice price of the de-fective product, and Gerhardt Christensen can under no circumstances be held liable for indirect loss, e.g. compensation for loss of use and loss of profits.
9.4 The warranty does not include natural/ordinary wear and tear and consumabales. The warranty does not cover errors or dammage caused directly or indirectly as a result of faulty mounting, faulty use, faulty connection and disconnection, wrong lubricant, etc. or external influences including vandalism.
9.5 The guarantee does not cover faults or defects resulting from materials or semi-manufactures delivered by the customer or materials prescribed by the customer being unfit for the purpose.
9.6 The liability period expires 12 months after the delivery date.
10. Force majeure
10.1 Gerhardt Christensen is not liable in damages for any non-performance of its obliga-tions if Gerhardt Christensen can prove that the non-performance is due to a hindrance outside of the company’s control, including but not limited to war, war-like situations, fire, strikes, lockouts, export and import bans, embargos, delayed or short delivery or materials from sub-suppliers, interruption of production, shortage of energy or trans-portation facilities.
10.2 Further, Gerhardt Christensen is not liable in damages for any non-performance of its obligations if the events contained in Clause 10.1 apply to one or more of Gerhardt Christensen’s sub-suppliers.
10.3 If events covered by Clauses 10.1 and 10.2 arise, Gerhardt Christensen is entitled to prolong the time of delivery accordingly or to terminate the agreement. As soon as the hindrance has ceased to exist, either Party will be obligated under the Agreement un-less Gerhardt Christensen has terminated in advance. In case of a hindrance of more than 3 months, either Party is entitled to terminate the Agreement.
11. Duty to give notice and duty of inspection
11.1 The Buyer is obligated to inspect the product immediately upon receipt thereof and to give notice of any defects not later than 3 days thereafter. If the Buyer does not ob-serve the stated time limits, the Buyer forfeits the right to assert the defect.
11.2 If a defect arises during the guarantee period, the Buyer is obligated to give notice thereof immediately and within 3 days after the defect was or should have been ascer-tained.
11.3 If the Buyer does not observe the stated time limits, the Buyer forfeits the right to as-sert the defect.
12. Product liability
12.1 Gerhardt Christensen is only liable for personal injuries or property damages caused by products if it can be shown that the injury/damage was caused by a fault or neglect on the part of Gerhardt Christensen in respect of a product delivered by Gerhardt Chris-tensen, and if it is shown that the product is defective, that the injury/damage was caused by the defect and that a causal connection can be established between the inju-ry/damage and the defect.
12.2 Further, Gerhardt Christensen is not liable for damage to real property or chattels oc-curring while the product is in the Buyer’s possession or liable for damage to products manufactured by the Buyer in which the product is made a part. Further, Gerhardt Christensen is not liable for any loss of profit, loss of time, loss of profits, loss of earn-ings or other indirect loss.
12.3 In the event of any liability beyond the aforesaid being imposed on Gerhardt Christen-sen, the Buyer is obligated to indemnify Gerhardt Christensen against such liability. The Buyer undertakes to take out required product liability insurance without recourse cov-ering any such product liability which may be asserted against the Buyer and/or Ger-hardt Christensen.
12.4 The Buyer undertakes to let itself be sued before the same court of law/arbitration tri-bunal hearing the issue on Gerhardt Christensen’s product liability.
13. Product information
13.1 The technical specifications and other dimensions stated in the catalogues are merely of a guiding character, and Gerhardt Christensen assumes no responsibility for any er-rors or mistakes in such catalogues. All information and data stated therein, including price lists, are merely binding in so far as this has been explicitly agreed between the Parties.
14. Fitting and service
14.1 All deliveries are exclusive of fitting and service.
14.2 If Gerhardt Christensen is to manage the fitting and/or service, a separate agreement will be drafted laying down the price and other general terms. The following basic con-ditions apply, however, to any individual agreement on fitting and service:
14.2.1 The Buyer undertakes to arrange for water and power at its own account, in-cluding that compressed air, electric current etc. are available to the necessary extent.
14.2.2 The Buyer undertakes to ensure that the place of fitting is ready for fitting, in-cluding dry and clean in accordance with Gerhardt Christensen’s directions.
14.2.3 The Buyer undertakes to ensure that the access to the place of service/fitting matches with the ordered fitting and/or service, including crane access, when required.
14.2.4 The Buyer undertakes to ensure that fitting and/or service can be carried out under conditions which are in accordance with applicable laws and provisions on working environment in the fitting place.
14.2.5 In general, the Buyer must observe Gerhardt Christensen’s fitting guidance in force from time to time.
14.2.6 Gerhardt Christensen will provide cranes, scaffoldings etc. Gerhardt Christen-sen will also provide workmen’s huts to its own staff, if required. The Buyer must ensure, for its own account, that the workmen’s huts can be connected to water and drainage.
14.3 The costs related to Clause 14.2.6, except for costs of connection of the workmen’s huts to water and drainage, however, are included in the price of fitting and/or service.
14.4 If the Buyer is in beach of its obligations under this Clause – Clause 14 –, Gerhardt Christensen is entitled to leave the site immediately after notification to the Buyer’s con-tact person of the conditions constituting the breach.
14.5 If the Buyer is in breach, Gerhardt Christensen is entitled to invoice the Buyer for any transport or waiting time by a total of DKK 400 per hour, however, always DKK 1.000 as a minimum.
15. Protection of rights
15.1 The purchase of the Products shall not confer on the Buyer any rights to Gerhardt Christensen’s industrial privileges, and the Buyer is not entitled to misuse any infor-mation on the Product and/or Products, thereby infringing any such rights of Gerhardt Christensen.
16. Drawings and descriptions
16.1 All drawings, documentary evidence or descriptions of the Product, regardless whether such were manufactured by Gerhardt Christensen or others, submitted to the Buyer in connection with an offer, a delivery or otherwise, will remain Gerhardt Christensen’s property. Any such material must not without Gerhardt Christensen’s prior written con-sent be used by the Buyer for other purposes than installation, operation and mainte-nance of the Product and must not be copied or transferred to any third party. In the absence of any agreement to the contrary on the delivery of the Product, such material shall be returned to Gerhardt Christensen.
17. Choice of Law and Venue
17.1 Any dispute arising out of or in connection with deliveries from Gerhardt Christensen will be settled in accordance with Danish law notwithstanding any principles of Danish international private law specifying any other choice of law.
17.2 Any dispute arising out of or in connection with deliveries from Gerhardt Christensen will be brought before and finally settled by the arbitration tribunal “Danish Arbitration” under the rules applying to the said tribunal, which apply at the commencement of the arbitration proceedings.
17.3 At the request of Gerhardt Christensen, the meetings will be held in Aalborg.