1. In General
1.1 All goods and services supplied by KPH Handel A/S shall be subject to these General Terms of Sale and to any separate contractual agreements. Any differing terms and conditions of purchase of the purchaser shall not form part of the agreement between the KPH Handel ApS and the purchaser.
1.2 Unless otherwise agreed, an agreement shall be deemed concluded when the KPH Handel ApS has issued a written order confirmation to the purchaser.
1.3 Unless otherwise agreed, all goods and services shall be delivered by the KPH Handel ApS EXW the KPH Handel ApS (Incoterms 2010).
1.4 Documents, such as illustrations, drawings and information about dimensions and performance shall be for guidance only, unless they are explicitly designated as binding.
1.5 The KPH Handel ApS reserves ownership of and copyrights to samples, cost estimates, drawings and the like, and to information embodied in a tangible or intangible manner, including in electronic form. This information may not be reproduced or made available to a third party by the purchaser without the prior consent of KPH Handel ApS. KPH Handel ApS may only make documents designated as confidential by the purchaser available to a third party with the prior consent of the purchaser.
2. Prices and Payment
2.1 Unless otherwise agreed, the agreed price shall be EXW KPH Handel ApS (Incoterms 2010) and shall include loading at KPH Handel ApS premises, but exclude insurance costs, packaging, unloading and all other ancillary costs. Value-added tax shall be added to the price at the applicable statutory rate.
2.2 Unless otherwise agreed, payment of the price shall be made without deduction to KPH Handel ApS’s account in instalments as follows:
• A down-payment of one third when the order is placed,
• A payment of one third when half of the delivery period has expired,
• The remainder upon delivery or upon notification of
readiness for shipment if delivery is not possible immediately after completion for reasons for which KPH Handle Aps is not responsible.
2.3 Unless otherwise specified in the acknowledgement of the purchaser’s order, payments shall be due net (without deduction) within 30 days of the invoice date. The statutory provisions regarding the consequences of default in payment shall apply.
2.4 The purchaser shall be entitled to offset his counterclaims only if they have been finally and conclusively determined, and are not disputed or have been acknowledged by KPH Handel ApS. In addition, the purchaser shall be authorised to exercise a right of retention only insofar as his counterclaim is founded on the same contractual relationship.
3. Delivery time, Delayed delivery, Force Majeure
3.1 The time of delivery shall be as agreed by the parties. KPH Handel ApS shall not be obliged to deliver the goods to the purchaser and the agreed time of delivery shall not apply until all commercial and technical questions have been clarified and the purchaser must have fulfilled all his obligations, such as furnishing of the necessary official certificates or approvals or making a down-payment. If this is not the case, the time of delivery shall be extended accordingly. This shall not apply if KPH Handel ApS is responsible for the delay.
3.2 Subject to separate agreement, the time of delivery shall be deemed to have been observed if KPH Handel ApS has given notification that the goods are ready for shipment at the agreed time of delivery. If acceptance is contractually required, the contractually specified acceptance deadline, or alternatively, the time at which notification of readiness for acceptance is given, shall be authoritative, except in the case where the purchaser justifiably refuses acceptance.
3.3 If shipment or acceptance is delayed for reasons for which the purchaser is responsible or if the purchaser culpably violates other duties of cooperation on his part, KPH Handel ApS shall be authorised to demand compensation for the losses he has incurred in this regard, including any additional expenses. Without prejudice to further claims, KPH Handel ApS can otherwise dispose of the goods to be delivered after he has set a reasonable period of grace and this has expired without remedy, in particular store the article to be delivered at the risk and expense of the purchaser and/or deliver the goods to the purchaser within a reasonably extended period of time.
3.4 If a failure to observe the time of delivery is due to force majeure, such as natural disasters, epidemics, war, armed conflicts, civil war, revolution, terrorism, sabotage, nuclear/reactor accidents, labour disputes or other events that are outside KPH Handel ApS control, KPH Handel ApS shall be discharged from his obligations for the duration of the event and the time of delivery shall be postponed accordingly. KPH Handel ApS shall inform the purchaser as soon as possible of an event of force majeure. If the event lasts for more than 6 months, KPH Handel ApS shall be authorised to terminate the contract with the purchaser and KPH Handel ApS shall not be liable for any loss sustained by the purchaser as a result of KPH Handel Aps termination of the contract.
3.5 If KPH Handel ApS is in delay and the purchaser incurs losses as a result, the latter shall be authorised to demand a lump-sum compensation for the losses due to such delay. This shall be 0.5% of the value of that part of the overall delivery that cannot be used on time or in accordance with the contract as a result of the delay, for each full week of the delay but a maximum total aggregate amount of 5% of said value. If KPH Handel ApS is in delay and the purchaser grants him a reasonable period of time to perform his obligations and if this period of time is not observed for reasons for which KPH Handel ApS is responsible, the purchaser shall be authorised to rescind the contract within the framework of section 21 of the Danish Sale of Goods Act. The purchaser’s right to demand a lumpsum compensation and/or to rescind the contract shall constitute the purchaser’s sole and exclusive rights and remedies in the event of KPH Handel ApS’s delay.
4. Tranfer of Risks, Acceptance, Insurance, Partial shipment, Packaging
4.1 Unless otherwise agreed, the risk of the goods to be delivered by KPH Handel ApS shall transfer to the purchaser in accordance with the agreed Incoterm, ref. section 1.3.
4.2 If acceptance has been agreed, this must be conducted by the purchaser immediately at the agreed time, alternatively after KPH Handel ApS has given notification that the goods are ready for acceptance. The purchaser cannot refuse acceptance due to an insignificant defect, provided KPH Handel ApS acknowledges his obligation to repair or replace the defective goods in accordance with and subject to Section 6.1.3 .
4.3 KPH Handel ApS undertakes to take out insurance requested by the purchaser, such as transport insurance, at the expense of the purchaser.
4.4 Partial deliveries shall be permitted as long as this is reasonable for the purchaser.
4.5 Transport and other packaging shall not be taken back, except for wooden pallets. The purchaser shall dispose of the packaging at his own expense.
5. Retention of Title, Assignment of Claims, Withdrawal
5.1 KPH Handel ApS shall retain ownership of the delivered goods until all claims with respect to the delivered goods against the purchaser have been settled (in Danish ejendomsforbehold).If the validity of the retention of title in the destination country of the goods requires an entry in a register or a similar procedure, KPH Handel ApS shall be entitled to have the retention of title registered and take any action required for the validity of the retention of ownership, with the purchaser providing any cooperation required.
5.2 The purchaser shall be obliged to treat the delivered goods subject to retention of title (retained goods) with care;in particular, he shall be obliged at his own expense to insure it adequately against theft, breakage, fire, water and other damage at the reinstatement value. KPH Handel ApS shall be authorised to take out this insurance at the expense of the purchaser if the purchaser has demonstrably not taken it out.
5.3 If the purchaser is in material breach of the contract with KPH Handel ApS, KPH Handel ApS shall be authorised to take back the delivered goods pursuant to the rules applicable to nonconsumer agreements in chapter 11 of the Danish Act on Consumer Credit Agreements.
5.4 The purchaser shall be authorised to resell the retained goods in the ordinary course of business. If the retained goods that have been delivered are resold, the purchaser hereby assigns the claims against his purchasers from the sale (total sum invoiced including value-added tax) or a corresponding part thereof, along with all secondary rights, to KPH Handel ApS until the latter’s claims have been settled in full. The purchaser is obligated to provide KPH Handel ApS with a copy of the invoice in respect of the resale without delay.
5.5 The purchaser shall remain authorised to collect the claim assigned pursuant to Section 5.3 himself; KPH Handel ApS’s authorisation to collect the claim shall remain unaffected thereby. KPH Handel ApS shall not be entitled to collect the claim if the purchaser (i) meets his payment obligations towards KPH Handel ApS, (ii) is not under reconstruction, and (iii) a petition in bankruptcy or similar petition has not been filed against the purchaser. If one of the above events occurs, KPH Handel ApS can demand that the purchaser discloses the claims assigned to KPH Handel ApS as security and provide all details and documents required to collect them.
6. Liability for Defects
The Seller shall be liable for defects and legal imperfections in title to the exclusion of further claims – subject to Section 7 and 8 – as follows:
6.1 Material Defects
6.1.1 Details given by KPH Handel ApS about the properties of the goods to be delivered are the result of his measurements and calculations and shall be the goods’ agreed nature, but not its warranted qualities or guarantees within the meaning of section 42(2) of the Danish Sale of Goods Act.
6.1.2 The purchaser can assert claims due to a material defect only if he has properly fulfilled his obligations to examine the supplied article and to give notice of defects to KPH Handel ApS without undue delay.
6.1.3 All delivered goods that prove to be defective as a result of circumstances before the transfer of risk shall, at the discretion of KPH Handel ApS, be repaired or replaced free of charge. Such defects shall be reported to KPH Handel ApS clearly and in writing as soon as they are discovered. Replaced, defective parts shall become the property of KPH Handel ApS.
6.1.4 KPH Handel ApS’s liability for material defects in third-party products which are an integral part or accessories of the delivered goods shall be limited to assignment of the claims for material defects of KPH Handel ApS against his supplier.
6.1.5 Following agreement with KPH Handel ApS, the purchaser shall give KPH Handel ApS the required time and opportunity to make all the repairs and to replace the defective goods as KPH Handel ApS deems necessary; otherwise, KPH Handel ApS shall be discharged from liability for the resultant consequences. The purchaser shall have the right to rectify the defect himself or have it rectified by a third party and demand compensation for his necessary expenses from KPH Handel ApS only in urgent cases of risk to safety or to avert disproportion-nately great damage; KPH Handel ApS shall be informed immediately thereof.
6.1.6 Of the direct costs incurred as a result of repair or delivery of a replacement, KPH Handel ApS shall – provided the complaint proves to be justified – bear the costs of the replacement item, including the cost of shipping it to the place of performance. KPH Handel ApS shall also bear the reasonable costs of removing the defective part supplied and the costs of installing the replacement item, if installation of the part that later became defective was originally part of the contract. The acceptance of further costs incurred by KPH Handel ApS in connection with rectification or replacement delivery shall be expressly excluded.
6.1.7 Within the framework of applicable law, the purchaser shall have the right to rescind the contract if KPH Handel ApS fails to remedy a material defect by a reasonable period of time set for him to repair the article or supply a replacement where non-compliance within the additional period is due to circumstances which can be attributed to KPH Handel ApS but not in cases of force majeure or similar instances. If the defect is only immaterial and KPH Handel ApS has failed to remedy the defect by a reasonable period of time set for him to repair the article or supply a replacement, the purchaser shall merely have a right to a reduction in the contractual price.
6.1.8 KPH Handel ApS shall not be liable for defects that are attributable to measures or designs expressly demanded by the purchaser or that occur in materials or products which have been provided by the purchaser or whose use the purchaser has expressly demanded contrary to KPH Handel ApS advice. In particular, no liability shall be assumed in the following cases: Unsuitable or improper use or incorrect installation or commissioning by the purchaser or a third party, failure to use original parts and materials, normal wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating supplies, faulty construction work, unsuitable subsoil, failure to back up or inadequate backing up of data by the purchaser; failure to check or inadequate checking of programs and data for computer viruses (as defined in Section 9.3) by the purchaser, unusual effects of any kind (e.g. vibrations from other assemblies, ingress of foreign matter), chemical, electrochemical or electrical influences – unless KPH Handel ApS is to blame for them.
6.1.9 If the purchaser or a third party carries out repairs improperly, KPH Handel ApS shall not be liable for the resultant consequences. The same shall apply to changes to the delivered goods that have been made without the prior consent of KPH Handel ApS. 6.1.10 The purchaser shall be obliged to return the defective goods to KPH Handel ApS at the request of KPH Handel ApS. 6.1.11 Subject to Section 8.2, the above warranty provisions shall apply accordingly to repair of defects.
6.2 Legal Imperfections in Title
6.2.1 If use of the delivered goods results in the infringement of intellectual property rights such as patents or copyrights of third parties, KPH Handel ApS shall at his own expense obtain the right for the purchaser to continue using the delivered goods or modify the goods in a way that the purchaser can reasonably be expected to accept so that the property right is no longer infringed. If this is not economically feasible or not possible within a reasonable period of time, the purchaser shall be authorised to rescind the contract. If said conditions exist, KPH Handel ApS shall also have the right to rescind the contract. Moreover, KPH Handel ApS shall – if he is to blame –indemnify the purchaser against claims of the owner of the intellectual property rights that are undisputed or have been determined finally and conclusively.
6.2.2 Subject to Section 7, KPH Handel ApS obligations specified in Section 6.2.1 shall be final in relation to the infringement of proprietary rights or copyrights.
These obligations shall exist only if:
• The purchaser informs KPH Handel ApS as soon as infringements of proprietary rights or copyrights are claimed.
• The purchaser assists KPH Handel ApS to a reasonable extent in defending against the claims or enables KPH Handel ApS to make the modifications as stated in Section 6.2.1,
• KPH Handel ApS retains the right to undertake all defensive measures, including out-of-court settlement.
• The legal imperfection in title is not attributable to an instruction by the purchaser or to the fact that the infringement only occurred as a result of combination of the supplied article by the purchaser with products or deliveries outside KPH Handel ApS’s scope of supply, and the infringement has not been caused by the fact that the purchaser has modified the supplied article on his own or used it in a way not in conformity with the contract.
6.2.3 KPH Handel ApS does not warrant that the end products manufactured on the delivered goods, including the manufacturing process used, are free of third-party property rights.
7.1 If the delivered goods cannot be used by the purchaser in accordance with the contract because KPH Handel ApS is to blame for failure to implement or inadequate implementation of suggestions and advice provided before or after conclusion of the contract or for violation of other additional contractual obligations – in particular the obligation to provide instructions on the use of and maintenance of the delivered goods – the provisions of Sections 6 and 7.2 shall apply accordingly, to the exclusion of further claims by the purchaser.
7.2 KPH Handel ApS shall be liable for damage not caused to the delivered goods themselves – on whatever legal grounds, including liability for ancillary personal injury and tort – only
• If he has acted with intent,
• If he has been grossly negligent,
• In the case of defects KPH Handel ApS has concealed with intent to deceive,
• In the case of defects to the delivered goods, provided a mandatory legal obligation exists in accordance with applicable Danish product liability rules or other relevant laws.
7.3 Further claims for damages – on whatever legal grounds – shall be excluded. If liability for damages on the part of KPH Handel ApS is excluded or limited, this shall also apply to personal liability for damages on the part of KPH Handel ApS employees.
8. Limitation of Actions
8.1 All claims of the purchaser – on whatever legal grounds – shall become statute-barred in 12 months. The statutory periods of limitation shall apply to intent or intent to deceive, culpable injury to life, body or health and claims under Danish statutory and case law-based product liability rules. Defects in a building or in delivered goods that have been used for a building in accordance with their customary usage and have caused a defect in the building shall be subject to a limitation period of three years.
8.2 If, as part of rectification of a defect, the purchaser obtains new rights in relation to defects, all claims arising from these rights shall become statute-barred at the latest 6 months from when the defect was rectified whereby such claims shall exclusively be limited to defects that arise directly in connection with the rectification of the defect.
9. Use of Software
9.1 If the software is part of the delivered goods, assigned purchaser a non-exclusive right to use the software and its documentation. The software may only be used in relation to the goods supplied. Software may not be used on more than one system.
9.2 Buyer may only reproduce, modify, adapt, or translate the software or convert it from object code to source code to the extent permitted by applicable law. Buyer undertakes not to remove the vendor’s data – specially copyright notices – or to change them without the seller’s prior written consent. All other rights to the software and documentation, including copies retained by the vendor or software provider. Under Licensing is not allowed.
9.3 Seller assumes no responsibility for computer viruses, Trojan horses, viruses based scams and similar programs, program parts and malicious features of the software that is provided to the buyer, which can result in loss or falsification of data or programs or deterioration of systems or parts of them ( hereinafter referred to as “computer virus”). It is not possible to rule out the risk that the software contains unknown or mutated viruses, or that such viruses can enter the buyer’s operating or operating system at a later time and possibly modify or delete the software program or other data or programs or impair systems.
9.4 The Buyer shall take measures to protect against computer viruses and other destructive data. The buyer is obliged to test whether the software or clay is in ed by computer viruses before running this software or formulas opens. This also applies to software that buyer wants to use as part of its operations or operating systems that can affect the functionality of the vendor’s software.
9.5 The Buyer shall be required to back up data even on a regular basis to prevent the loss of these as a result of computer viruses.
10. Repeal, Amendment or Suspension
A contract may be repealed, amended or suspended, written notice and only if such notification is accepted in writing by the other party. In the event that the buyer withdraw, amend or suspend the contract, the buyer compensate KPH Handel ApS for costs as required below:
If the buyer cancels a contract for custom made products or parts that are KPH Handel ApS entitled to withhold such products or parts, and the buyer must pay a cancellation fee equal to KPH Handels costs min. 20%. of the agreed price for the products or parts.
11. Applicable Law, Venue
11.1 These General Terms of Sale shall be governed by and interpreted in accordance with Danish law with the exclusion of any conflict of law principles and the regulations of the United Nations Convention dated 11 April 1980 on the international sale of goods (CISG).
11.2 All legal disputes arising out of or in relation to these General Terms of Sale shall be settled by Danish arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration. The number of arbitrators shall be three and the venue for the arbitration shall be Copenhagen. The arbitral proceedings shall be conducted in English. Notwithstanding the foregoing, KPH Handel ApS shall be authorised at his discretion to bring legal action against the purchaser at the purchaser’s home court.
12. General Provisions
12.1 Unless otherwise specified in the order confirmation, the place of performance of the mutual obligations of the contractual relationship the vendor’s home. This also applies if the agreed standard clauses in trade.
12.2 Statements which serves to establish, maintain or exercise rights are not valid unless given in writing. Written form includes statements sent in text form by data transfer (eg. E-mail) or fax, unless written form is mandatory under the applicable law.
12.3 Buyer may not assign its contractual rights and obligations under the agreement to sell to a third party without the prior written consent of the seller. Seller may freely assign its contractual rights and obligations under the agreement with the seller to third parties.
12.4 If the seller offers installation, commissioning, maintenance, repair or similar services, the vendor’s relevant special terms and conditions for the provision of such services take precedence over these general sales conditions in the event of disagreement.
1. In General