1. Scope of Application
The present sales- and delivery provisions shall apply to all supplies of products from Smoke It All A/S unless otherwise agreed in writing between the parties.
Smoke It All A/S is hereinafter called Vendor and the other party to the contract is called Purchaser.
2. Catalogues, leaflets, price lists, cost-free assistance, etc.
Cost-free assistance in connection with the Vendor’s advice and guidance in handling of the product including what is based on descriptions in material about the products are solely a service to the Purchaser for which the Vendor does not accept any responsibility.
The Vendor accepts no responsibility for any misinformation in handed-out written documentation on the products that may have been prepared by the Vendor’s suppliers.
All sales are conducted in accordance with a written order confirmation duly signed by the Purchaser, upon the request of the Vendor.
Reservations or deviation from what is mentioned in the order confirmation or the present general provisions are considered as inconsistent acceptance with the consequence that Vendor is not bound by a quotation or what may be specified in the order confirmation.
If an order confirmation has not been signed by the Purchaser, any objection shall be made in writing to the Vendor within 10 working days from the receipt of this. If not, the order confirmation shall be regarded as a contractual basis irrespective of the fact that it has not been signed.
Forwarding of and reply to order confirmation can be effected electronically.
4. Sample Product
If the parties have agreed that Purchaser shall prior to placing of an order receive a sample product and a purchase agreement is hereinafter entered on the basis of such a sample product, the product supplied shall be in conformity with the sample product.
Provided that the Purchaser proves that this is not the case, the Vendor is entitled to make a new delivery but does not incur any liability for compensation as well as the Purchaser cannot cancel the purchase.
Replacement delivery shall be done without delay.
5. Terms of Delivery and Payment
The purchase sum including all expenses and costs shall be paid in cash at delivery to the Purchaser. Upon the request of the Vendor the Purchaser shall provide security for payment prior to starting up production/prior to delivery in accordance with the terms that the Vendor may determine. If a price has not been agreed upon in the written order confirmation, the sale will be effected at the price applicable on the day of delivery. This implies that increases in duties, price changes from the Vendor’s supplier above 2% occurring in between entitle the Vendor to increase the price accordingly.
Any discount shall not be calculated of value added tax or other duties and delivery costs.
Interest on overdue payment shall be 1.5% per commenced month.
Non-payment after a fixed date of payment entitles the Vendor to cancel the agreement and in this case the Purchaser will be held responsible for the loss that the Vendor may suffer including loss in connection with any resale.
6. Currency Rate Reservation
When invoicing the Purchaser, the Vendor is entitled to regulate the part of the price for the goods and the transport costs, which vendor is to pay in foreign currency up or down based on the exchange rate on the day that the Vendor settles the foreign currency to settle his purchase . The Vendor is entitled to make a similar regulation in cases where the price is based on a detailed provision in relation to another currency. Vendor shall indicate in the order confirmation whether it is subject to an agreed currency reservation.
7. Ownership Reservations
The ownership right to the article remains with the Vendor or with the person to whom the Vendor has assigned his rights, until the purchase sum with interest rates, costs, etc. has been settled completely. The Purchaser is obliged to keep the products appropriately ensured against theft, burglary, fire, etc.
Delivery is ex works in accordance with Incoterms 2000 or newer versions unless otherwise agreed in the order confirmation. The Risk for the product passes to Purchaser when Vendor has put the product at the disposal of Purchaser on time at the place of delivery.
9. Time of Delivery, Delays
The delivery times stated by the Vendor are approximate until final time of delivery has been confirmed by the Vendor. If delay is due to circumstances which pursuant to the provision mentioned in Section 13 are causes for exemption of liability or are due to circumstances on the part of the Purchaser, the delivery time will be extended to the extent found reasonable in relation to the circumstances.
Vendor has no responsibility for indirect losses, which any delay may cause, including loss of profit, loss of profit and other financial consequential losses and direct financial consequential losses. Vendor’s liability for any other losses can never exceed an amount corresponding to the price of the product.
If the products are specially produced products meaning products that are not currently part of the Vendor’s standard product range, the Purchaser cannot cancel the deal due to delay, irrespective of essentiality. The Purchaser can in all cases only cancel the deal if this can be effected without a loss to the Vendor.
10. Responsibility for Faults and Complaints
Immediately upon receipt of the product and prior to taking it into use, the Purchaser shall control the product to make sure that the product is without faults, so that the product is not damaged in the packing, the agreed quantities have been delivered, etc.
Complaints due to faults shall be made in writing to the Vendor within 10 working days after delivery. Complaints can be made electronically.
If Purchaser does not comply with this term, the right to claim due on faults shall lapse. Purchaser shall secure evidence for the faults.
Subject to the Vendor’s choice any faults will be remedied through delivery of substitute products. In case of delivery of substitute products, the Purchaser is precluded from claiming other remedies for non-conformance, including cancelation of the agreement, claiming reduction of the purchase price and demanding compensation.
The Vendor is not liable for any indirect losses including operating losses and loss of profit and other financial consequential losses and direct financial consequential losses which any actionable faults may cause. The Purchaser’s expenses to wages and costs in connection with replacement of the products subject to justified complaint will not be covered.
The Vendor’s liability for any other losses cannot exceed an amount corresponding to the price of the product.
The Vendor guarantees that the product complies with the specifications, instructions and guidelines of any kind labelled on the products, including information and properties entered in catalogues, leaflets, etc. provided that these are explicitly indicated in the order confirmation.
12. Product Liability
Vendor assumes no liability for personal injuries or damage on products apart from what follows from mandatory regulations which the Vendor is exposed to in Denmark and it this case only to the extent following from such statutory provisions. The Vendor can not be held liable for indirect damage, consequential damage, operational and profit losses or the like. Vendor is not responsible if the product is handled or applied contrary to product descriptions about the intended use of the product or it is handled in an unforeseeable way.
To the extent that liability should be imposed on the Vendor by the Purchaser, notwithstanding Section 12 (1), in connection with the purchaser’s use – or in case of resale – third party’s handling or use of the product, the Purchaser is obliged to indemnify the Vendor for the liability that would in that case be imposed on the Vendor.
The Vendor’s liability for injury caused by a defective product is maximum 1 year. Vendor’s responsibility for injury caused by a defective product can never exceed the sum of liability in the product liability insurance of the Vendor.
Purchaser is obliged to let himself be sued by the same court which deals with claims for liability against Vendor with regard to the sold article. The mutual relationship between the Vendor and the Purchaser shall always be settled in accordance with the below provision on choice of law and venue, provided that the parties cannot come to an agreement.
13. Exemption from Liability
The Vendor cannot be held responsible for losses that are due to circumstances of which the Vendor is not in control and the occurrence of which Vendor could not or should not have taken into consideration including – but limited to – breakdown of IT connection, industrial conflict and sub-supplier’s delay or bankruptcy or suspension of payments. The same holds for any circumstance that the parties do not control, such as fire, war, mobilisation, seizure, currency restrictions, riots, restrictions on fuel, and lack of transport means and common shortage of goods, strike or other industrial stoppage (force majeure).
14. Applicable Law and Venue
Any dispute between the parties shall be settled according to Danish law and in Denmark.
Disputes arising from the agreement or the present terms of sales and delivery can upon the Vendor’s choice be subject to court ruling. Otherwise the dispute shall be finally settled by arbitration in accordance with the rules of arbitration under Danish Law. Arbitration shall be held in Esbjerg, which shall also be venue in case of court ruling.
The 15th day of May 2013/15.11.13