1.1 These standard terms of sale and delivery (”The Terms”) shall apply to all agreements and contracts between KK Metal I/S (”The Company”) and business clients, e.g. sale and delivery of products, spare parts and connected services.
2. Basis for Contract
2.1 The Terms, The Company’s offer and order confirmation shall constitute the Basis for Contract concerning sale and delivery of products, spare parts and connected services from The Company to the customer (The Basis for Contract). The customer’s purchase terms printed on orders or in other ways communicated to The Company will not constitute a part of The Basis for Contract.
2.2 Changes to and additions to The Basis for Contract shall only take effect, if the parties have agreed in writing.
3. Products, spare parts and services
3.1 Products and spare parts, sold and delivered to the customer by The Company, shall be new and adhere to Danish legislation at the date of delivery. The Company shall sell and deliver spare parts for a product in a minimum of 12 months after the date of delivery to the customer.
3.2 Connected services sold and delivered to the customer by The Company, in connection with sale and delivery of products or spare parts shall be performed professionally correct and adhere to Danish legislation at the date of delivery.
3.3 Products, spare parts and connected services sold and delivered to the customer by The Company, should be intended for business activity in Denmark and other countries, as it cannot be guaranteed that these adhere to foreign legislation. Regardless of any potential opposite terms in The Basis for Contract, The Company shall not be responsible for loss or damage, which can be connected to use for alternate purpose. The customer must indemnify The Company in the extent The Company should become liable for such loss or damage.
4. Price and payment
4.1 The price for products, spare parts and connected services shall reflect The Company’s offer or order confirmation/invoice, unless the parties have made another written agreement.
4.2 The customer shall pay all invoices for products, spare parts or connected services within 10 days of the issue of the invoice, unless the parties have made another written agreement.
5. Retention of title
5.1 The sold shall remain property of KK Metal I/S until the full purchase price has been payed, including any potential accrual of interest.
6. Delayed payment
6.1 If the customer fails to pay an invoice for products, spare parts or connected services within the agreed 10 days from the date of issue of the invoice due to reasons for which The Company is not liable for, The Company has the right to interests of the due amount of 2 % per end of the month from the due date for payment until payment occurs.
6.2 If the customer neglects to pay a due invoice for products, spare parts or connected services no later than 14 days upon receiving a written claim of payment from The Company, in addition to the interest of section 6.1, The Company will have the right to dissolve the sale of products, spare parts or connected services, to which the delay relates and dissolve the sale of products, spare parts or connected services, which have not yet been delivered to the customer or demand advance payment for this, and/or submit other remedy for breach of contract in accordance with Danish legislation.
7. Offers, orders and order confirmations
7.1 The Company’s offers shall be valid for 10 days from the day the offer dates, unless else is stated in the offer. Accept of an offer, which comes The Company to hand after the expiry of the time stipulated for acceptance, shall not be binding for The Company, unless The Company informs the customer of otherwise.
7.2 The Company shall strive to post a written confirmation or rejection of an order of products, spare parts or connected services to the customer no later than 2 workdays upon receiving the order. Confirmations and rejections of orders must be written in order to be binding for The Company.
7.3 The customer cannot alter a given order of products, spare parts or connected services without The Company’s written confirmation.
7.4 Inconsistent terms. If The Company’s confirmation of an order of products, spare parts or connected services is not consistent with the customer’s order or The Basis for Contract, and the customer does not wish to accept the inconsistent terms, the customer shall inform The Company of this no later than 2 days upon receiving the order confirmation. Otherwise, the customer will be bound by the order confirmation.
8. Delivery and passing of risk
8.1 Terms and conditions of delivery. The Company delivers all sold products and spare parts EXW – Ex Works cf. Incoterms 2016.
8.2 Delivery date. The Company shall deliver all sold products, spare parts and connected services at the date, which is stated in the order confirmation. The Company will have the right to deliver before the agreed delivery date, unless the parties have made another written agreement.
8.3 Inspection. The customer shall inspect all products, spare parts and connected services at the delivery date. If the customer discovers a defect, which the customer wishes to assert, the customer shall give an immediate written notice to The Company. If the customer has not given notice to The Company of a defect, which is discovered or should have been discovered by the customer, within 3 days after the defect is discovered or should have been discovered, the defect cannot be claimed later.
9. Delayed delivery
9.1 Notice. If The Company will expect a delay in the delivery of products, spare parts or connected services, The Company shall inform the customer as soon as possible and at the same time inform the customer about the cause for the delay and a new expected delivery date.
9.2 Termination. If The Company should fail to deliver products, spare parts or connected services no later than 30 days after the agreed delivery date for causes which the customer is not liable for, and the delivery does not occur within a reasonable time limit of a minimum of 5 days, the customer can terminate the order(s) affected by the delay without prior notice, by giving a written notice to The Company. The customer will not have other rights in contemplation of delayed delivery.
10. Warranty and defects
10.1 The Company shall warrant that products, spare parts and connected services are free of essential defects in design, material and performance for 12 months from the date of delivery. For parts that will be replaced under warranty, the period of warranty shall constitute 12 months from the date of replacement, subject to a maximum of 24 months from the original delivery date.
10.2 Exclusions. The Company’s warranty will not include wear parts or defects that are caused by, e.g. (i) fair wear and tear, (ii) storage, installation, use or maintenance inconsistent with The Company’s instructions or standard practice, (iii) repair or alteration performed by somebody other than The Company, and (iv) other circumstances, which The Company is not liable for.
10.3 Notice. If the customer should discover a defect in the warranty period, that the customer should wish to assert, a written notice shall be given to The Company immediately. If the customer fails to give an immediate notice of a defect that has been or should have been discovered, the claim cannot be made at a later date. The customer shall give The Company the information, as requested by The Company, regarding a notified defect.
10.4 Inspection. Within 14 days upon receiving the notice from the customer, The Company shall inspect the claim and inform the customer, whether the defect is covered by the warranty. The customer shall send defect parts to The Company upon request. The customer shall pay the costs and hold the risk for parts during shipment to The Company. The Company shall pay the costs and hold the risk for parts during shipment to the customer, if the defect is covered by the warranty.
10.5 Remedy. Within 21 days upon The Company giving notice to the customer regarding a defect and claim of warranty, cf. clause 10.4, The Company shall remedy the defect by: (i) replacing or repairing defect parts, or (ii) send parts to the customer for the purpose of the customer’s own replacement or repair.
10.6 Termination. If The Company fails to remedy a defect covered by warranty within 21 days upon The Company’s notice to the customer in accordance with Cl 10.4, for reasons which the customer has no responsibility, and the defect is not remedied within a reasonable time limit of a minimum of 21 days, the customer may terminate the order(s) affected by the defect without prior notice, by giving a written notice to The Company. The customer will not have other rights in contemplation of a defect in products, spare parts or connected services other than those specifically specified in Cl 10.
11.1 The parties shall each be liable for their own actions and omissions under present law with the restrictions described in The Basis for Contract. The Company alone shall have the product liability to the extent the liability follows mandatory statutory provisions of the Danish Product Liability legislation, law number 261 of March 20th 2007, as potentially amended. The Company, however, shall not be liable for damage to property, unless the subject-matter usually is meant for non-commercial usage and mainly applied by the claimant in compliance herewith. The Company is not liable for damage on the actual defective product or other larger products, which it would be incorporated in.
11.2 The Company’s liability, furthermore, shall be limited to the specifications of Cl 11.4 to 11.6.
11.3 Should a third party make claims toward the customer or The Company, the party in question shall immediately notify the other party hereof. The customer shall indemnify The Company from and against all and any claims, if The Company would be imposed liability for a claim, which The Company is not liable for toward the customer.
11.4 Regardless of any potentially opposite terms in The Basis for Contract, The Company’s liability toward the customer will not exceed 10 per cent within a calendar year of the sale of products, spare parts and connected services, which The Company has invoiced the customer net for in the calendar year, during which the delivery of the defective products, spare parts or connected services took place. The limitation of liability shall not apply, if The Company has acted intentionally or with gross negligence.
11.5 Regardless of any potentially opposite terms in The Basis for Contract, the customer cannot hold The Company liable for indirect loss, including loss of production, sale, profit, time or goodwill, loss as a result of anticipated cost reductions, and expenses to acquire products or services as compensation or replacement, unless The Company has acted intentionally or with gross negligence.
11.6 Regardless of any potentially opposite terms in The Basis for Contract, The Company shall not be liable for non-fulfilment of its contractual obligations if such non-fulfilment is due to force majeure. The exempt from liability shall be in effect whilst force majeure exists. Regarded as force majeure shall be circumstances and conditions beyond control of The Company, and which The Company would not have been able to or should have foreseen at the making of the Contract. Examples of force majeure shall be unusual nature conditions, war, terror, fire, flooding, lack of power supply, restriction on import, nuclear reactions, criminal damage and work disputes.
12. Intellectual property rights
12.1 The full ownership of all intellectual property rights concerning products, spare parts and connected services, including patents, design, trademarks and copyright belong to The Company.
12.2 If delivered products or spare parts should infringe intellectual property rights of a third party, The Company shall replace the infringed products or spare parts at own expense with others not in breach. The customer will not have any additional rights on account of products’, spare parts’ or connected services’ breach of a third party’s intellectual property rights.
13.1 A party (The Company or the customer) shall keep all information, which is obtained from the other party in connection with the completion of the order, strictly confidential and shall not pass this information on to a third party or use the information for another purpose than that to handle and complete the order without a prior written consent of the other part.
13.2 The conditions of the standard terms of sale and delivery Cl. 13.1 will not apply for information, which is common to the public, is obtained by a party from a third party in good faith, is developed independently by a party without using the other part’s information, or surrendered in fulfilment of legal obligations.
14. Governing law and venue
14.1 The trade practice between the parties shall in all aspects be governed by Danish law.
14.2 Any dispute, which would occur in connection with the trade practice between the parties, shall be settled at Danish court of law with the district court in Holstebro as the court of first instance.