General terms of sales and delivery
1.1 These General Terms of Sale and Delivery (the “Terms”) apply for all deliveries of products (“Products”) from FGM A/S (“FGM”), to all customers (“Buyer”), unless otherwise specifically agreed in writing.
1.2 Any modifications of or deviations from these Terms, which may be listed in the Buyer’s order or the like must be accepted in writing by FGM.
1.3 The Buyer’s acceptance of Products being shipped or delivered, or the Buyer’s receipt of Products, shall be deemed as acceptance of these Terms.
1.4 In the event of one or more provisions in these Terms becoming invalid, illegal or unenforceable, the validity, legality en-forceability of the remaining provisions shall not be affected or impaired.
2. Product information
2.1 Any product information including, but not limited to, the weight dimensions, quality, technical and other data that appear from catalogue, description, prospects, advertisement etc., and regardless of whether the information is given in writing, orally, electronically, online or via download, should be considered as informative only, and shall only be binding to the extent that FGM expressly refers thereto in an offer or an order confirmation. Specific buyer requirements are only binding if FGM confirms such requirements in writing.
3. Prices, payment and order
3.1 Prices for Products are exclusive of VAT and other taxes or fees. FGM reserves the right to regulate the agreed prices for non-delivered Products in case of exchange rate changes, increasing in material prices, increases in sub-contractors’ prices, changes in customs duties, changes in working wages, government intervention or similar situations, where FGM has limited or no control.
3.2 If FGM submits a written offer that does not specify a particular acceptance deadline, the offer will expire if acceptance hereof has not reached FGM within 7 days from the date of the offer (“acceptance deadline”).
3.3 The Buyer shall not transfer an offer to a third party.
3.4 Payment terms in accordance with the terms stated in the order confirmation.
3.5 On late payment default, interest is charged at a rate of 2 % pr. commenced month. If payment is not made on time or if the Buyer omits to take delivery of the Product sold once the Buyer is committed to do so, FGM shall be entitled to immediately and without further notice to cancel the sale. In case of the latter, FGM is entitled to claim compensation from the Buyer in accordance with applicable law.
3.6 The Buyer is not entitled to withhold any part of the purchase price due to any kind of counterclaims.
3.7 If a delivery is suspended due to the Buyer’s circumstances, the Buyer shall make payments to FGM, as if delivery had been made at the agreed time, unless otherwise notified by FGM to the Buyer in writing.
3.8 The Products shall remain the property of FGM until the full purchase price and all incurred costs have been paid to FGM.
4. Order confirmation
4.1 An order under these Terms is deemed as the Buyer’s offer to purchase Products. FGM shall not be deemed to have accepted an order before the Buyer has received FGM’s written or electronic acceptance of the order in the form of an order confirmation. If the Buyer objects to the content of the order confirmation, such objection shall be given in writing and received by FGM within 48 hours after the date of the order confirmation.
4.2 FGM shall not be deemed to have entered into a binding agreement unless FGM has received a written and conforming acceptance from the Buyer on an offer made by FGM within the acceptance deadline.
5. Cancellation and changes
5.1 An order cannot be cancelled or changed, unless FGM has provided a written approval hereof no later than 10 (ten) working days after the date of the order confirmation.
5.2 The Buyer shall indemnify FGM for any costs and losses caused by such cancellation, which costs and losses in the aggregate shall never be less than 10 % of the agreed purchase price for the cancelled Products excl. value added tax.
6.1 Notified times of delivery are indicative only. If FGM assesses that the estimated time of delivery cannot be observed, the Buyer will receive notification hereof and, if possible, information on new estimated delivery date.
6.2 All deliveries are made FCA (Incoterms 2010) at the place named by FGM. The risk of the Products passes to the Buyer at the time when the goods are made available for collection by the Buyer.
7. Duty of Inspection
7.1 Upon receipt, the Buyer shall immediately conduct such examination of the Products sold, which proper business pur-poses demands. If the delivery is insufficient or inadequate, the Buyer shall immediately hereafter notify FGM in writing.
In case of transport damages or other visible damages, the damages in question must be documented by making a note of this on the consignment note upon receipt of the Products.
7.2 If the Buyer later becomes aware of defects which, despite careful examination, could not be found upon delivery, the Buyer shall immediately notify FGM in writing after finding such defects.
Notwithstanding Clause 7.3, the Buyer shall claim defects no later than 6 (six) months after delivery.
7.3 If the Buyer does not immediately notify FGM, as stated in this Clause 7, the Buyer shall be barred from raising any claim against FGM for the defects or insufficiency in question.
8.1 In the event of a legitimate and timely claim pursuant to these Terms, FGM shall at FGM’s own option remedy the defect by either replacement or repair. Such remedy shall be arranged for without undue delay and shall be completed within a reasonable time. Remedy is generally made at the location of the defective Products with the exceptions provided in this Clause 8. The Buyer shall send the defective part or Product to FGM upon request and the Buyer shall be responsible for proper packaging and shipping of the defective part or Product. If remedy has been made, the Buyer shall have no further claims against FGM for the defective Product. FGM shall obtain ownership of Products which have been replaced/returned.
8.2. The Buyer shall bear additional costs related to the repair of defects and incurred by FGM as a result of the defective Products being located at a place other than the place of delivery. If a disassembly or an assembly results in interference with anything else than the Products, the work and the related costs shall be made on the Buyer’s own account.
8.3 In the event of a complaint from the Buyer being unwarranted, any work or deliveries made by and other expenses incurred on FGM for remedial efforts shall be compensated by the Buyer.
8.4 If FGM does not fulfil its remedial obligations within a reasonable period, the Buyer shall be entitled to in writing set a reasonable final deadline for remedy of minimum 15 (fifteen) working days. To the extent that remedy has not been made within this deadline, the Buyer may at its own option: a) order new parts/Products at the expense of FGM, but at the Buyer’s own risk, provided that the Buyer does this in a reasonable and fair manner and that the costs does not exceed the price, which the Buyer originally paid FGM for the defective Product/Product part in question; or b) demand a pro rata reduction of maximum 15 % of the agreed purchase price for the defective Product/Product part in question. Where the defect is so substantial as to significantly deprive the Buyer of the benefit of the agreement as regards the Product or a substantial part of it, the Buyer may terminate the agreement by notice in writing to FGM in respect of such part of the Product as cannot in consequence of the defect be used as intended by the Buyer.
8.5 If the Buyer terminates the partial agreement pursuant to Clause 8.4, the Buyer shall have the right to claim compensation for the Buyer’s costs related to a covering purchase. However, such compensation may not exceed the original price, which the Buyer paid FGM for the partial agreement in question.
8.6 FGM’s liability applies for 12 (twelve) months from the date of delivery. For returned, replaced or repaired parts, FGM’s liability for defects applies for 12 (twelve) months from the date of the compensating delivery, replacement or repair, not exceeding 24 (twenty-four) months from the original delivery date.
In cases of short deliveries (quantitative lack of conformity), FGM may make subsequent deliveries within a reasonable time, in which case the Buyer may not invoke breach.
8.7 The Buyer is responsible for ensuring that the Producys are suitable for the Buyer’s needs, hence FGM is not responsible for the Products’ suitability for the Buyer’s intended purpose.
9. Limitation of liability
9.1 FGM shall only be liable for document-ed direct loss. Hence, FGM shall not be liable for any of the following types of loss or damage that may arise from or in relation to an agreement covered by these Terms: 1) any loss resulting from loss of production, profit, revenue, goodwill or expected savings, or 2) any loss or destruction of data; or 3) any other consequential damage or indirect loss arising from delays or defects of the sold Products.
9.2 FGM shall not be liable for costs incidental to dismounting and remounting the objects or installations, in which the Product might be incorporated.
FGM shall not be liable for defects arising out of the materials provided or a design stipulated or specified by the buyer.
9.3 FGM’s liability for loss or damage arising from or in continuation of an agreement governed by these Terms shall be limited to the total amount invoiced by FGM to the Buyer for the agreement in question.
9.4 FGM shall not be liable for advice given to the Buyer in connection with drawings or the drawing up of projects.
FGM’s liability shall be limited to defects which appear within a period of 12 months from delivery. If the use of the Product exceeds that which is agreed, this period shall be reduced proportionately.
10. Product liability
10.1 FGM shall not be liable for any damage to property caused by the Product after it has been delivered and whilst it is in the possession of the Buyer. Nor shall FGM be liable for any damage to products manufactured by the Buyer or to products of which the Buyer’s products form a part. FGM shall only be liable for Products to the extent that such liability is provided by applicable mandatory product liability provisions.
10.2 FGM’s liability is limited as stipulated in Clause 9 “Limitation of Liability”.
10.3 FGM shall only be liable for the injured party; hence the Buyer cannot raise any claims against FGM for loss incurred in connection with product liability claims raised against the Buyer.
10.4 If the injured party makes a product liability claim against FGM, FGM reserves the right to be indemnified by the Buyer to the extent that the claim is not caused by defects in the Products or FGM’s negli-gence.
10.5 If a third party makes a claim against one of the parties (the Buyer or FGM) for product liability, that party shall immediately inform the other party hereof.
11. IPR and confidentiality
11.1 All drawings, models and other technical documents concerning the Product provided from FGM to the Buyer, regardless of whether they were provided before or after entering into the agreement, remain the property of FGM.
11.2 The Buyer shall treat both the type and contents of the agreement as well as any other corporate information related to FGM, in whatever form, as confidential and not disclose anything in this respect with-out prior written approval of FGM.
11.3 The Buyer shall not use FGM’s name or reference for publication, advertising or whatever purpose without FGM’s prior written approval.
12. Force Majeure
12.1 In the event of a force majeure, the parties are released from their respective obligations for as long as the force majeure persists. A ‘force majeure’ will be said to exist if performance of the contract has become significantly more onerous as a result of, among other things, an event such as war, civil war, riots, acts of terrorism, government restrictions, bans on imports or exports, natural disasters of any kind, as well as widespread or local labour disputes, fire, power failure, computer viruses or the like, unless it can be shown that the party ought to have been able to predict such event at the time of entering into the contract.
12.2 Should the in Clause 12.1 stated circumstances afflict the Buyer, the Buyer shall cover FGM’s costs related to securing and protecting the Products during the existence of such circumstance.
12.3 If the performance of the agreement is prevented for more than 3 (three) months due to circumstances stated in Clause 12.1, the parties shall be entitled to cancel the non-fulfilled part of the agreement without any compensation.
12.4 Both FGM as well as the Buyer are obliged to notify the other party without undue delay after a circumstance pursuant to Clause 12.1 occurs.
13. Governing law and jurisdiction
13.1 The Buyer as well as FGM shall seek to resolve any disputes and disagreements amicably.
13.2 Any disputes between the parties in connection with the agreement and related circumstances shall be settled according to the provisions in Danish law.
13.3 Disputes shall be resolved exclusively by the Danish courts, and by the district court in Svendborg as first instance.
To the extent that the parties have agreed, that FGM provides supervision for the installation of the Products, the following clauses shall apply in addition to the above-mentioned terms.
14. FGM’s obligations
14.1 FGM shall, provide the services of one or more competent supervisors
a. to give to the Buyer or his site representative mentioned in Clause 16 the necessary instructions for the installation of the Product and,
b. to supervise the manner in which the FGM’s instructions are carried out.
14.2 The number and qualifications of the FGM’s staff and the estimated duration of supervision shall be agreed separately.
15. The Buyer’s obligations
15.1 Installation shall be carried out by the Buyer who shall at his own expense provide the skilled and unskilled labour, all equipment and everything necessary for the installation of the Product. The Buyer shall ensure that the following conditions are satisfied:
a. The supervision is not carried out in unhealthy or dangerous surroundings. All the necessary safety and precautionary measures shall have been taken before supervision is started and shall be maintained during the time of supervision.
b. FGM’s staff is able to obtain suitable and convenient board and lodging in the neighbourhood of the site and shall have access to internationally acceptable hygiene facilities and medical services.
c. Sufficient offices on the site, equipped with telephone and access to the internet are available to FGM.
d. Necessary assistance to ensure that FGM’ staff obtain in good time visas and any official entry, exit or work permits and (if necessary) tax certificates required in the Buyer’s country, as well as access to the site.
15.2 The Buyer shall give FGM minimum one months’ notice of the date at which the site will be ready for the installation word and the commencement of the supervision.
15.3 If the supervision is delayed due to a cause for which the Buyer or any contractor other than FGM is responsible, including but not limited to the Buyer providing unskilled labour for tasks requiring skilled labour, the Buyer shall compensate FGM for:
a. extra work resulting from the delay;
b. waiting time and time spent on extra journeys to and from the site;
c. costs as a result of FGM having to keep its equipment at the site for a longer time than expected;
d. additional costs for journeys and board and lodging for FGM’ staff; and
e. other documented costs incurred by FGM as a result of changes in the supervision programme.
15.4 FGM shall be entitled without prior notice, to suspend the supervision and withdraw its staff, if an invoice is not paid at the due date by the Buyer.
16. Site representatives and site register
16.1 Each of the parties shall in writing appoint a representative to act on his behalf during the supervision in all matters concerning the installation work and the supervision.
16.2 FGM shall keep a site register in which he shall note all installation and supervision work carried out and problems encountered. This site register shall be completed and signed daily by the representatives of the parties.
17. Liability for supervision
17.1 FGM’s supervision shall include instructions to and general supervision of the Buyer’s staff’s installation of the Products. FGM shall not be liable for the Buyer’s staff’s faulty installation of the Products, unless the Buyer documents that such fault is a direct result of FGM’s supervision being an act of wilful misconduct.
17.2 FGM’s liability for supervision shall be limited as stated in Clause 9.