TERMS OF SALE AND DELIVERY FOR ELAS A/S
These terms of sale and delivery apply to agreements entered into with ELAS A/S, Industrivej Nord 1, Birk, 7400 Herning, Denmark, Cvr-nr. 14 45 72 91 (‘ELAS’) – and take precedence over any other such or similar terms from a customer. These terms of sale and delivery apply to all orders. Deviations from this can only be made by express written agreement.
The terms of sale and delivery are subject to change without notice.
The customer declares to have read, fully understood, and accepted these terms and conditions of sale and delivery.
1. OFFER & ORDER CONFIRMATION
Offer available for 30 days. Final agreement on sale and delivery is only concluded when ELAS has confirmed the order in writing/e-mail or similar. The order is accepted subject to the availability of goods, raw materials, and the like. ELAS does not assume any responsibility for complete conformity between any specifications in the customer’s request and the specifications in ELAS’ offer and/or order confirmation. In the event of any discrepancy between the specifications of the enquiry and the offer/order, the specifications of the order confirmation shall prevail.
All information on weight, specifications, technical data, etc. that may appear in catalogues, inter/intranet pages, circulars, etc. are approximate and will only be binding on ELAS if the offer or agreement directly refers to this.
2. CANCELLATION
Cancellation of orders by the customer cannot be accepted unless otherwise agreed in writing and accepted by ELAS in each individual case. In the event of unforeseen events or of unsatisfactory solvency information about the customer, obtained after the acceptance of the order, ELAS is entitled to cancel any order without liability or to require a full bank guarantee.
3. INTELLECTUAL PROPERTY RIGHTS
Samples, pictures, technical descriptions etc. intended for the manufacture of goods at ELAS, which, before or after the conclusion of the contract, are handed over to the buyer, are the property of ELAS and may not be copied, reproduced, or otherwise presented to competing companies, unless ELAS has given its written permission to do so.
4. TERMS OF DELIVERY
ICC Incoterms 2010 ex works Herning (business address above for ELAS), Denmark, unless otherwise exceptionally by specific agreement stated in the order confirmation. ELAS may, under certain circumstances, specifically assist in arranging and dispatching goods if this has been agreed in writing and accepted by ELAS in any individual case and always at the customer’s expense and risk. In the case of delivery of standard goods, the minimum delivery shall be ELAS’ then-current quantity for standard ordering or the quantity divisible thereby. In case of delivery of order/special produced goods, the quantities confirmed by ELAS may differ by +/- 10%.
5. DELIVERY TIME AND DELAY
The delivery time is stated in the order confirmation. ELAS has the right to postpone the delivery period for 14 days. If such postponement becomes applicable, ELAS shall, as soon as ELAS becomes aware of it, inform the customer in writing of the postponement. In the event of force majeure (see paragraph 10), delivery may be postponed until the hindrance has ceased and normal trade and transport are possible.
6. PRICES
All prices are in Danish kroner DKK and exclusive of VAT and, unless otherwise agreed, ELAS’ price list applies at the time of delivery. Changes in customs duties and consumption taxes of any kind, as well as currency fluctuations, are reserved and may thus be imposed on prices up to delivery. ELAS shall notify the customer thereof in writing without undue delay.
7. PAYMENT, INTEREST CALCULATION, AND MORA
Payment and interest conditions are set out in the offer/invoice sent by ELAS. If the customer fails to pay, the collection legislation in force at any time shall apply in other respects. ELAS may, by written notice and without liability, postpone delivery or cancel orders if the customer is in arrears with payment for previous deliveries. ELAS reserves the right to cancel the order if payment is not made on time. Any financial loss suffered by ELAS shall be fully compensated by the customer. The customer shall not be entitled to offset the purchase price against any claims that the customer may have against ELAS from other legal relationships, and the customer shall not be entitled to retain the purchased goods for such counterclaims. The customer shall not be entitled to withhold payment on account of any complaint or counterclaim concerning the delivered items.
8. PROPERTY RESERVATION
All goods shall remain the property of ELAS until payment has been made in full to the extent permitted by applicable law. All costs associated with the enforcement of the retention of title shall be borne by the customer.
9. COMPLAINTS AND POWERS
Complaints about defects or delays must be made in writing and received by ELAS within 8 days of delivery of the goods or – in the event of a delay – expected delivery. In the case of non-apparent damage, the complaint must be made in a similar manner within 8 days of the
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defect being discovered by thorough examination – however, no more than 3 months from delivery. Cancellation can only be made for the specific delayed or defective goods in an order. If a part of the order is missing or delayed, or if a part of the order is defective, only that part may be cancelled. Any complaint about defects or delay must be specific, documented, and state precisely the content of the complaint. Returns may not be made without the prior written consent of ELAS. ELAS reserves the right to replace defective goods with non-defective goods or rework/repair or otherwise remedy the defect within 30 days. The right to complain shall be forfeited in the event of further processing for purposes other than necessary examinations/tests.
10. DISCLAIMER (INCLUDING FORCE MAJEURE)
ELAS shall not be liable to the customer if the following non-exhaustive force majeure-like circumstances occur after the order confirmation and prevent or delay the performance of the agreement: war and mobilization, riots and civil commotions, terrorist acts, natural disasters, strikes and lockouts, outbreaks of disease, pandemics, epidemics, shortages of goods, shortages or delays in delivery by subcontractors or when these are affected by the present circumstances in any other way, fire, lack of transport possibilities, currency restrictions, import and export restrictions, death, illness or resignation of key personnel, and computer viruses or other circumstances over which ELAS has no direct control. In this case, ELAS is entitled to postpone delivery until the impediment to performance has ceased or, alternatively, to cancel the agreement in whole or in part without liability. If any of the above circumstances result in delivery being postponed for more than 6 months, the customer may freely and without liability cancel the order.
11. PRODUCT LIABILITY AND LIMITATION OF LIABILITY
ELAS is liable for damage to persons or property caused by ELAS’ products or services after they have been put on the market or utilized to the extent that this follows from Danish law. Notwithstanding the above, ELAS shall not be liable for any other direct or indirect disruption of the customer’s business, indirect loss, loss of business, loss of time, loss of profits, or any other form of loss. In the case of damage to property, ELAS’ liability is limited to the sum insured at any time, calculated per insurance year. Notwithstanding the foregoing, liability arising from damage to property may not exceed the amount of the product liability insurance taken out by ELAS at any time. As ELAS’ products are usually included in the customer’s finished product, the customer undertakes to take out professional and product liability insurance on the usual terms.
12. DEFECTS AND LIMITATION OF LIABILITY
If the product suffers from a defect, a complaint must be made immediately to ELAS. All complaints about defects must be submitted in writing and with photographic documentation. Goods cannot be returned without prior written agreement with ELAS. In the event of a defect, ELAS shall not be liable for any other direct or indirect disruption of the customer’s business, indirect loss, loss of profits or any other form of loss. In any event, the maximum liability of ELAS shall not exceed an amount corresponding to a refund for the defective part of the order.
13. JURISDICTION AND APPLICABLE LAW
The Agreement shall be governed by and construed in accordance with Danish law. The International Sales Convention (CISG) shall not apply. The place of jurisdiction is agreed to be the relevant district court in Denmark nearest to the head office of ELAS. However, ELAS shall have the right to demand settlement of any dispute by arbitration before the Danish Arbitration Institute or the Arbitration Court of the International Chamber of Commerce (ICC), where the place shall be Denmark and the language of the proceedings shall be Danish.