These general terms of sale and delivery ("the Terms") is part of the Agreement (as defined below) and shall apply and be an integral part of any quotations, sales and deliveries of goods ("the Goods") by Rose Holm A/S ("Rose Holm") to a customer ("the Customer"), unless otherwise expressly agreed in writing. In case of any difference between these Terms and conditions put forward by the Customer in orders or otherwise, these Terms shall prevail.
1.1. Rose Holm's quotation to the Customer, the Customer's order, Rose Holm's confirmation of the Customer's order and any of Rose Holm's standard terms referred to by Rose Holm in its quotation and/or order confirmation shall collectively be referred to as "the Agreement".
2. VALIDITY OF QUOTATIONS
2.1. Where no specific term of acceptance of a quotation is indicated, the term of acceptance shall be 30 days from the date of Rose Holm's quotation to the Customer.
2.2. The Agreement shall be deemed legally entered into with binding effect between Rose Holm and the Customer as per the date of Rose Holm's confirmation of the Customer's order (date of the Agreement).
3. PRICES AND PAYMENT TERMS
3.1. All prices quoted by Rose Holm are given on an "Ex Works" basis (as defined in Incoterms 2010) and in Danish Kroner, exclusive of Value Added Tax and any other duty or tax payable on the sale of the Goods.
3.2. Until the date of delivery, Rose Holm reserves the right, by giving notice to the Customer at any time, to increase the price of the Goods to reflect any increase in the cost to Rose Holm, which is due to any factor beyond the control of Rose Holm, including increased costs of material and other costs of manufacture.
3.3. Payment terms are net 10 days from date of invoice.
3.4. In the event of delayed payments an interest of 2 % per month is accrued and Rose Holm is entitled to withhold any other orders placed and/or part deliveries not yet effected until the Customer has settled all outstanding amounts with Rose Holm (including interest).
4. RETENTION OF TITLE
4.1. Until payment has been received in full by Rose Holm, title to the delivered Goods shall remain with Rose Holm (in Danish: ejendomsforbehold). In the event of non-payment, Rose Holm shall, in addition to all other rights and remedies available, be entitled to recover possession of the Goods.
5. TERMS OF DELIVERY
5.1. The Goods are delivered Ex Works (as defined in Incoterms 2010) Lynge, Denmark. If Rose Holm undertakes to engage a freight forwarder on the Customer's behalf, the passing of risk and other legal consequences of the prescribed term of delivery shall not be altered thereby.
5.2. Unless otherwise expressly agreed between Rose Holm and the Customer, time of delivery shall not be of the essence of the Agreement.
5.3. The Customer will be deemed to have accepted the Goods as being in accordance with the Agreement unless the Customer immediately gives notice to Rose Holm pursuant to clause 6.3, failing which the Customer shall not be entitled to reject the Goods and Rose Holm shall have no liability for such defect or failure.
6.1. If the Customer establishes to Rose Holm's reasonable satisfaction that there is a defect or other non-conformity of the Goods with the Agreement, then Rose Holm shall at its option and within a reasonable time at its sole discretion either:
(a) repair or make good such defect or failure free of charge to the Customer; or
(b) replace such Goods with Goods which are in all respects in accordance with the Agreement; or
(c) take back such Goods and issue a credit note to the Customer in respect of the whole or part of the purchase price of such Goods as appropriate.
6.2 Remedies under this clause shall in every case be subject to the remaining provisions of this clause 6. The liability of Rose Holm under this clause 6 shall in no event exceed the purchase price of such Goods and performance of any of the above options shall constitute an entire discharge of Rose Holm's liability under this warranty.
6.3. The entire risk of the quality and performance of the delivered Goods is with the Customer. The Customer shall examine the delivered Goods upon delivery and any alleged defect or other non-conformity of the Goods with the Agreement shall be notified in writing to Rose Holm 14 days thereafter. The notice shall contain a description of how the alleged defect manifests itself. If the Customer fails to notify Rose Holm in writing within the time limit set forth above, the Customer shall forfeit all of its rights under this clause 6.
6.4. Rose Holm shall be under no liability under this clause 6:
(a) in respect of any defect arising from fair wear and tear, abnormal working conditions, misuse or alteration of the Goods without Rose Holm's prior approval;
(b) if the total price for the Goods has not been paid by the due date for payment;
(c) for any parts, materials or equipment not manufactured by Rose Holm, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Rose Holm;
(d) for the Goods' merchantability or fitness for a particular purpose.
6.5. Notwithstanding the above, the Customer shall in any event lose his right to rely on any defect or other non-conformity of the Goods if the Customer fails to notify Rose Holm thereof in writing within 12 months after the delivery of the Goods.
7 GENERAL LIMITATIONS OF LIABILITY
7.1. Unless mandatory legislation provides otherwise, Rose Holm shall in no event be liable for any loss or damage arising, directly or indirectly, from the use of the delivered Goods, including any product liability, and/or for any indirect or consequential loss or damages of any nature whatsoever, including but not limited to loss of profits, loss of interest or other losses sustained by the Customer or third parties arising out of the use or inability to use the Goods.
7.2. Without limiting the above, Rose Holm shall in no event be liable for any damage to, or destruction of, real estate or any other item of property, provided that the item of property (i) is of a type not ordinarily intended for private use or consumption, and/or (ii) was not used by the injured person mainly for his own private use or consumption.
7.3. Rose Holm's aggregate liability whether in contract, warranty, tort or otherwise, arising out of or connected with the performance or non-performance of the Agreement shall in no event exceed the amount paid by the Customer pursuant to the Agreement during the 12 months prior to the Customer becoming aware of the basis for a claim towards Rose Holm.
8. CUSTOMER'S INDEMNITY AND INSURANCE
8.1. The Customer agrees to indemnify Rose Holm and its employees and agents in full and on demand and keep them so indemnified from and against all claims, actions, proceedings and all damages, losses, costs and expenses, which are made or incurred by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below, and this indemnity shall cover all consequential and indirect losses suffered by Rose Holm and its employees and agents:
(a) the manufacture and sale of the Goods by Rose Holm in accordance with the Customer’s designs, drawings, specifications or other data or information furnished or instructions given by the Customer;
(b) the cancellation of any order by the Customer after its acceptance by Rose Holm; and
(c) any breach by the Customer of its obligations under the Agreement.
8.2. The Customer shall maintain in force such insurance policies as are appropriate and adequate (e.g. contractors all-risk insurance, third party liability insurance, product liability insurance, industrial injury insurance etc.) with a reputable insurer having regard to its obligations and liabilities under this Agreement. The Customer shall upon demand furnish to Rose Holm copies of relevant insurance certificates documenting scope of cover and sum insured. The Customer shall, during the term of the Agreement and for a period of 5 years thereafter do nothing to invalidate any of the insurance policies.
9. FORCE MAJEURE
9.1. Rose Holm shall not be liable for the following causes or events where such causes or events hinder the performance of or make the performance thereof unreasonably onerous to Rose Holm: Industrial or labour disputes and any other cause or event beyond Rose Holm's control, including, but not limited to, fire, war, mobilizations or calling up for military service to a similar extent, riots, commotions, requisitions, confiscation, exchange control restrictions, transport hindrances, power restrictions, embargoes on imports or exports, and defects or delays in deliveries caused by sub-contractors.
9.2. Notwithstanding clause 9.1, either party shall be entitled to terminate the Agreement by notice in writing to the other party if performance of the Agreement is delayed more than six (6) months by reasons of the force majeure as described in this clause 9.
10. APPLICABLE LAW AND VENUE
10.1. The laws of Denmark shall govern the Agreement. However, the provisions of the United Nations Convention on the International Sale of Goods shall not apply.
10.2. The District Court in Copenhagen (in Danish: Københavns Byret), Denmark, shall have exclusive jurisdiction with respect to any dispute arising out of or in connection with this Agreement.
These General Terms of Sale and Delivery enter into force on 10 December 2015.