General Terms of Sale and Delivery
1. Scope and applicability
1.1 These General Terms of Sale and Delivery (the "Terms") shall apply to all offers, sales, deliveries, installation work and services ("Goods") between Klingspor A/S ("Klingspor") and buyers of Klingspor's Goods (the "Customer").
1.2 The Terms may only be derogated from if Klingspor has agreed to this in writing. These Terms prevail over any other terms and conditions stated in the Customer's tender documents, orders, letters of acceptance, etc. and such terms and conditions are therefore not considered a derogation from these Terms, unless the derogation has been accepted by Klingspor in writing.
2. Offers/orders
2.1 Any agreement between Klingspor and the Customer is not deemed to have been concluded, until Klingspor has submitted an order confirmation. If the order confirmation derogates from the Customer's order, objections hereto must be made in writing by the Customer against the contents of the order confirmation and such objection must reach Klingspor within one week from the date of the order confirmation. If this time-limit is exceeded, an agreement is deemed to have been concluded on the terms stated in the order confirmation.
3. Technical data, product information etc.
3.1 All information in leaflets, catalogues, price lists etc. on weight, dimensions, capacity, performance and other technical data are approximations and only binding, if expressly stated in the agreement.
4. Price
4.1 Prices appear from Klingspor’s order confirmation. All prices are quoted ex works, without packaging, exclusive of VAT, customs duty and any other indirect taxes, unless otherwise agreed between the parties and quoted in the order confirmation.
4.2 Klingspor reserves the right to unilaterally adjust confirmed prices if increases or decreases in Klingspor's costs following the conclusion of the contract appear, especially as a result of changes to customs tariffs, currency rates, indirect taxes, increases in the price of raw materials, wage agreements etc. Such changes do not entitle the Customer to cancel the order. Upon request from the Customer, Klingspor shall provide evidence of these changes.
5. Payment
5.1 Unless otherwise agreed the purchase price must be paid net cash.
5.2 Failure to observe the time for payment will result in the invoice amount carrying interest at 2% per month entered into.
6. Retention of title
6.1 Goods remain the property of Klingspor until full and effective payment has been effected by the Customer. The retention of title shall not affect the passing of risk.
7. Delivery
7.1 Delivery is ex works Klingspor's site (or another place in Denmark as assigned by Klingspor in the order confirmation) (INCOTERMS 2010) unless otherwise agreed in writing in each specific case and stated in the order confirmation.
7.2 Klingspor is entitled to deliver the order as partial deliveries.
7.3 Klingspor shall make commercially best efforts in meeting the date of delivery stipulated in the order confirmation. In case a delay in delivery is expected, Klingspor shall inform the Customer thereof without undue delay. In any event, the Customer is entitled to cancel the order only where Klingspor fails to deliver the Goods within an additional, reasonable time-limit to be fixed by the Customer after the Customer is entitled to invoke the relevant delay, such time-limit not to be less than thirty (30) calendar days. Unless the Customer has been notified in writing that Klingspor will not perform according to agreement prior to expiry of the time-limit fixed, the Customer is not entitled to invoke any remedies for breach for as long as such time-limit has not expired.
7.4 The time of delivery is postponed if Klingspor is prevented from completing or delivering the order within the agreed time due to reasons which lie outside the control of Klingspor (Force Majeure, cf. clause 14).
8. Return
8.1 Goods delivered by Klingspor will only be accepted for return if separate agreement has been made in advance with Klingspor. Klingspor reserves the right to charge a return fee of 15%.
8.2 Goods which may be returned according to agreement with Klingspor shall be sent to Klingspor in a new and undamaged condition. The Customer must pay for any freight costs.
9. Additional services
9.1 Deliveries from Klingspor do not include assembly/installation, test running, adjustments, service work etc., unless specifically agreed.
9.2 Upon request from the Customer, Klingspor assists in assembly/installation at the Customer's site, including test running, adjustments, service work etc.
9.3 A request for assistance must be given in due time for Klingspor to be able to allocate the staff needed.
9.4 For additional services, delivery is deemed to have taken place, when Klingspor notifies the Customer that assembly/installation, test running, adjustments, service work etc. have been completed. The risk of accidental damage to the installed Goods passes to the Customer on notice of completion. If the Customer commences operation of the delivered Goods before notice of completion from Klingspor, the Customer is liable for any damage, loss or waste that is not caused by Klingspor.
9.5 If the assembly/installation, test running, adjustments, service work etc. on the relevant parts prove to be defective, Klingspor is, free of liability, entitled either to remedy the defect or to pay compensation equalling the amount that it would cost the Customer to have the defect remedied locally, always provided that Klingspor has accepted the price quoted in writing by a third party for remedying the defect.
9.6 For additional services, Klingspor invoices the Customer on the basis of time spent. Furthermore, the Customer covers all costs relating to Klingspor's assistance, including travel costs to the installation site, accommodation, etc.
10. Cancellation and amendment
10.1 Cancellation (in full or in part) and/or amendments to an order after the order has been confirmed by Klingspor is subject to written approval from Klingspor and is subject to compensation and/or a fee to be paid to Klingspor.
11. Delay caused by circumstances within the Customer's control
11.1 If a delay is caused by circumstances within the Customer’s control, including but not limited to the Customer’s change of specifications or requirements, delay in delivery of technical specifications etc., Klingspor's delivery time is extended by the duration of such delay.
11.2 If the Customer is unable or refuses to take delivery of the Goods at the agreed delivery time, the Goods remain at Klingspor's site (or another place in Denmark as assigned by Klingspor) at the Customer’s expense and risk. Invoice will be issued as if delivery has taken place and the default interest rate in clause 5.2 applies.
12. Defects and non-conformity
12.1 Upon receipt, the Customer shall promptly examine the Goods for the purpose of ascertaining whether the quality and quantity of the Goods are correct.
12.2 The Customer must promptly and not later than three days after receipt object to any defects or non-conformity that was or should have been discovered during the examination, cf. clause 11.1. The Customer's objection must be sent by e-mail to 24h@klingspor.dk specifying the nature of the defect or non-conformity.
12.3 In case of hidden defects (defects that could not reasonably be noticed during the inspection, cf. clause 10.1), the Customer must notify Klingspor of the occurred defect by e-mail sent to 24h@klingspor.dk specifying the nature of the defect within 14 days after the discovery.
12.4 Klingspor shall at its sole discretion determine whether (1) to remedy a defect, (2) replace the Goods with goods of a similar quality, or (3) cancel the relevant order/agreement and repay the purchase price received on surrender of the delivered Goods.
12.5 If Klingspor offers to remedy the defect or replace (parts of) the Goods, the Customer is not entitled to cancel the order or claim compensation for the defect. Only if it is not reasonable to subject the Customer to further attempts of repairing or replacing (parts of) the Goods, the Customer is entitled to either cancel the order or demand a reasonable reduction in the purchase price.
12.6 Any part sent or service carried out before the acceptance of the warranty will be invoiced to the Customer. If the warranty-claim is accepted by Klingspor, a credit note will be issued regarding the components covered by the warranty. Other parts and services must be paid by the Customer.
12.7 The Customer must pay for any transportation or flight costs pertaining to works performed by Klingspor's repair/maintenance team at locations outside European countries.
13. Warranty
13.1 The warranty period is 12 months starting at the ex works delivery date of the Goods (in case of no assembly etc.) or the date when Klingspor notifies the Customer that the assembly/installation, test running, adjustments, service work etc. have been completed.
13.2 Repaired or replaced parts are subject to 6 months' warranty starting at the ex works delivery date of the Goods (in case of no assembly etc.) or the date when Klingspor notifies the Customer that the assembly/installation, test running, adjustments, service work etc. have been completed.
13.3 For Goods, for which a SAT-test is to be carried out, the warranty period is 12 months starting at the date of the SAT-test or 1,800 operational hours of the machine (whichever occurs first).
13.4 The warranty does not cover normal wear and tear, disrepair, inappropriate maintenance or incorrect handling, (including overload or overvoltage), negligence, accidental damages, unauthorized modifications, unauthorized use or programming, storage, transportation or installing, any kind of use of the Goods under the conditions different from those recommended, failures caused after the failure or defect had or should have been detected, batteries, lamps and fuses damages, and damages due to a use of parts not supplied or manufactured by Klingspor.
14. Limitation of Liability
14.1 Klingspor is only liable for damage or loss in case it is proved that such damage, loss or cost was due to fault or negligence on the part of Klingspor.
14.2 Notwithstanding clause 13.1, Klingspor is not liable for any damage to real property or movables caused after the Customer has taken possession of the Goods, nor liable for damage to products manufactured by the Customer or products which the Goods form part of, unless the damage, loss or cost is a result of a wilful act or gross negligence by Klingspor.
14.3 Provided Klingspor is imposed with product liability towards third party, the Customer is obliged to indemnify Klingspor subject to the above limitation of liability for Klingspor. Such limitation of liability will not apply in the event of gross negligence on the part of Klingspor.
14.4 Klingspor shall under no circumstances be held liable for any consequential loss, loss of profits, loss of production or other indirect loss as a result of the supplied Goods or services being defective.
14.5 Klingspor’s lliability is in any case, including cases of personal injury, limited to the amount of the purchase price. As regards cases of product liability, Klingspor's liability is limited to the extent of the sum covered by Klingspor’s product liability insurance.
14.6 This clause applies to any kind of liability of a party, be it under contract or any law.
15. Force Majeure
15.1 Klingspor is not liable for non-performance of its obligations under offers already made or prospective orders or for delays caused by Force Majeure.
15.2 Force Majeure shall include but is not be limited to:
- War, terrorism and vandalism
- Natural disasters and unusual weather conditions including severe storms, rain, snow etc.
- Fire
- Strikes and lawful lockouts.
15.3 Klingspor is obligated to notify the Customer without undue delay in case of the occurrence of a Force Majeure event.
15.4 In case of Force Majeure, each party shall cover its own costs resulting from the Force Majeure event.
15.5 In case of Force Majeure, Klingspor is entitled to postpone delivery for a reasonable time, minimum by a period equal to the duration of the hindrance.
15.6 If a Force Majeure situation lasts without interruption for 30 days or more, or it is evident that it will do so, Klingspor is entitled to cancel an order placed by the Customer by written notice to the Customer.
16. Intellectual property rights and other material
16.1 All intellectual property rights, including patents, trademarks, utility models, copyrights, know-how etc., relating to the Goods belong to Klingspor.
16.2 The Customer is liable for any infringement of Klingspor's intellectual property rights regardless of whether the infringement is made possible due to a wilful act, by default or negligence by or on behalf of the Customer.
16.3 Drawings, specifications, calculations and other technical information which is provided by Klingspor shall remain the property of Klingspor.
17. Assignment of rights and obligations
17.1 Klingspor is entitled to assign, in full or in part, to any affiliated company Klingspor's rights and obligations under any agreement entered into on the basis of these Terms.
18. Applicable law, place of jurisdiction
18.1 Any disputes or claims arising out of or in connection with these Terms and any contractual relationship between Klingspor and the Customer shall be governed by Danish law (including CISG), excluding Danish international private law (choice of law rules).
18.2 Any disputes or claims arising out of or in connection with these Terms and any contractual relationship between Klingspor and the Customer, which cannot be amicably settled by the parties, shall be settled by the ordinary Danish courts, in the first instance by the District Court in Kolding (Retten i Kolding).
19. Invalid clauses
19.1 In case one or more provisions of these Terms become invalid, the validity of the remaining provisions shall not be affected thereby.