Terms of sale and delivery for HOLMRIS B8 A/S
1. Scope and duration
1.1 These terms of sale and delivery shall apply to all quotes, orders, deliveries and payments where HOLMRIS B8 A/S ( HB8 ) acts as a supplier or sub-supplier, unless dispensed with by explicit written agreement.
1.2 The Buyers indication of special or general terms in tender documents, commissions, orders, terms of procurement or similar shall only be considered agreed if a specific agreement has been made to this effect, cf. clause 1.1, and shall in no way be deemed to constitute a derogation from or amendment to the present terms of sale and delivery.
1.3 The terms of sale and delivery are effective from 1 June 2007 and remain in force until otherwise announced by HB8.
2.1 Any quotation is submitted subject to errors, faults and other discrepancies, including writing errors, and subject to the goods, including production materials, being unsold.
2.2 Quotations are binding on HB8 for 30 (thirty) days from the quotation date, unless other time-limits are expressly indicated in the quotation.
2.3 Delivery times stated in the quotation are indicative only, as HB8 reserves the right to change the time of delivery in the order confirmation.
3. Order placing/Order confirmation
3.1 Agreements shall not be binding for HB8 until the Buyer has received a written order confirmation from HB8, except where the Buyer accepts a quotation given by HB8 within the time-limit for acceptance, cf. clause 2.
3.2 The order confirmation and the present terms of sale and delivery are considered the applicable basis governing any trading between HB8 and the Buyer.
3.3 The Buyer shall always check the order confirmation immediately upon receipt. Any objections to the content of the order confirmation shall be communicated to HB8 in writing no later than 5 (five) days after the order confirmation date, as the Buyer shall otherwise be considered bound by the order in accordance with the order confirmation.
3.4 Cancellation of or changes to orders shall be subject to the written consent of HB8 in each single case as well as simultaneous payment of (i) a fee of 25% of the sales price in the order confirmation, and possibly (ii) any costs incurred by HB8 in respect of the order.
3.5 HB8 reserves the right to reject orders until the Buyers outstanding balance, if any, has been paid to HB8.
4.1 Interior design advice and preparation of suggestions for interior design, etc. is invoiced at the applicable hourly rate per architect hour or part thereof. Subject to agreement, this service may be offered free of charge in case of large purchases.
4.2 Work carried out by service fitters is invoiced at the applicable hourly rate, which is calculated per fitter per hour. One hourly rate applies during ordinary working hours, and a different rate applies to night and weekend work.
5. Delivery and delivery time
Delivery is EX Works (EXW) HB8’s factory in Bjerringbro, Incoterms 2000, unless otherwise agreed.
5.1 Delivery times indicated in order confirmations are based on estimates. A delay in a specific delivery from HB8 within 4 (four) working weeks from the delivery time stated in the order confirmation shall be considered timely.
5.2 In case of delayed delivery in excess of said 4 (four) weeks, and if delivery has still not been effected no later than 5 (five) days after the Buyers subsequent demand for delivery, the Buyer shall be entitled to cancel the order in writing without payment of the amounts stated in clause 3.4. The Buyer shall not be able to exercise any other remedies for breach due to the delay, including claims for damages.
5.3 The Buyers access to cancel the order, cf. clause 5.2, shall not apply, however, if (i) HB8 has indicated the delivery time subject to reservations, (ii) the article is custom-made for the Buyer, (iii) the lack of delivery is due to force majeure, cf. clause 15, (iv) abnormally large demand or (v) injunctions by public authorities.
5.4 In case of delays due the circumstances on the part of the Buyer, the Buyer shall be obliged to pay the purchase price at the agreed time, and the Buyer shall pay the costs of storage, etc.
6. Terms of pricing and payment
6.1 HB8s prices shall be the prices in effect on the order day, unless otherwise agreed in writing.
6.2 The terms of payment are 14 (fourteen) days net, cash on delivery, unless otherwise agreed in writing.
6.3 Payment shall be made by bank transfer to HB8s account at the expense of the Buyer, unless a different mode of payment is agreed in writing.
6.4 In case of payment after the last due payment date, interest of 1.2% shall be added per month or part thereof after the due date and until the amount is credited to HB8s bank account. Interest notes shall be paid net cash within 8 (eight) days.
6.5 If the Buyer has debts to HB8 which are past due for more than 30 (thirty) days, purchases may only be made subject to cash on delivery or advance payment, notwithstanding the amount of the debt due. This shall apply similarly if the Buyer has not received credit approval from HB8.
6.6 The Buyer cannot set off payments against any claims that the Buyer has against HB8, and payment cannot be refused with reference to the product being defect, unless HB8 has acknowledged the objection about the defect. In case of delays, the Buyer may not withhold the payment of claims already due.
7. Reservation of title
7.1 Subject to the limitations following from mandatory rules of law, HB8 reserves the title to the sold items until the entire purchase price plus costs incurred has been paid to HB8 or the entity to which the purchase price is assigned, if applicable.
8.1 HB8 shall only accept returned products subject to prior agreement and only if the products are returned to a storage facility indicated by HB8 in clean, undamaged and unbroken packaging. Return of products and components not comprised by HB8’s standard range, altered products, counters and products upholstered with fabric shall not be accepted.
8.2 Any returns are at the expense and risk of the Buyer. The Buyer shall be refunded the purchase price less 25% when the articles have been returned to HB8.
9.1 HB8 offers a five-year manufacturing guarantee on new, self-manufactured articles against manufacturing defects in materials and constructions. In no circumstances shall the guarantee comprise ordinary wear, tear and age, damage to cover or surfaces (including surface treatment) or damage due to wrong and/or inadequate maintenance or use.
9.2 For mechanical and electronic parts, a two-year manufacturing guarantee is offered, subject to the content and limitations following from clause 9.1.
9.3 Any products manufactured subject to specifications by the customer are not comprised by HB8s test certificates for strength, durability and stability, and HB8 shall not provide any guarantees in these respects.
9.4 If the guarantee is invoked, HB8 shall be free to choose between (i) redelivery, (ii) repair, (iii) accepting return of the articles against crediting of the purchase price and (iv) offering the Buyer a proportionate reduction in the purchase price. In general, the provisions of clause 14 concerning limitation of liability shall apply to any liability for damages.
10. Defects and complaints
10.1 Complaints about errors or defects in the article shall be made in writing no later than 7 (seven) days after the time of delivery. Complaints made after the expiry of this time-limit shall have no legal effect unless the error or defect could not have been established by performing a prudent examination of the article immediately upon delivery. In the latter case, the complaint shall be made no later than 7 (seven) days after the error or defect is or should have been established. Under no circumstances may errors or defects be invoked later than 1 (one) year after delivery unless a guarantee has been provided in accordance with clause 9.
10.2 Complaints about transport damage or other errors and defects that are visible before unpacking the article shall be submitted in writing to the carrier by the Buyer upon receipt of the article and noted on the bill of carriage. Otherwise, the damage may not be claimed against HB8.
10.3 In case of timely complaints about errors and defects, clauses 9.4 and 14 shall apply.
11. Product liability
11.1 HB8 shall be liable for any personal injury or damage to property inflicted by a delivered product if, by its nature, the object in question is normally designated for non-commercial use and has mainly been used in compliance with this by the party suffering the damage or injury.
11.2 HB8 shall not be liable for commercial property damage unless it can be substantiated that the damage was due to errors on the part of HB8 which should not have been prevented by the Buyers examination of the products delivered.
11.3 In no circumstances, however, shall HB8 be liable for damage caused to (i) the Buyers products, (ii) products packaged together with the products delivered or (iii) products in which such products form part, unless it is substantiated that HB8 is guilty of gross negligence.
11.4 If HB8 is liable in damages to a third party and such liability exceeds the restrictions on HB8s liability set out herein in relation to commercial property damage, the Buyer shall indemnify HB8 for such liability in any respect.
11.5 If a third party presents a claim for damages for product liability to the Buyer, the Buyer shall forthwith inform HB8 in writing.
11.6 In case of property damage or personal injury caused by defects in HB8s products, HB8 shall immediately be given access to inspect the location of the damage or injury and any property damage.
12. Technical information
12.1 Product information, illustrations, drawings, information about technical data (e.g. weight, dimensions, volumes, strength, load capacity, performance and surface), materials in catalogues, brochures or other materials from HB8 shall be indicative only.
12.2 HB8 reserves the right to change specifications and descriptions without prior notice.
12.3 All drawings and technical documents for products given to the Buyer shall remain the property of HB8. Such materials may not be used by the Buyer, copied, reproduced, surrendered to a third party or otherwise communicated to a third party without the written permission of HB8.
13. Ergonomic information
13.1 HB8s information about the ergonomic characteristics of the products is indicative only and cannot replace or substitute individual ergonomic advice.
13.2 No liability for damages or any other remedies for breach may be invoked against HB8 concerning the content of ergonomic information or requirements by public authorities.
14. Limitation of liability
14.1 HB8s liability, including the delay liability in clause 5, the guarantee liability in clause 9, the defects liability in clause 10 and the product liability in clause 11, shall in all respects be limited by the provisions of this clause 14 on limitation of liability.
14.2 HB8 shall not assume any liability for damages in respect of los ses incurred because of delays, defects or any other breach, unless the loss was caused by gross negligence on the part of HB8.
14.3 HB8 shall assume no liability for indirect losses, including loss of goodwill, lost earnings (e.g. lost profits), operating losses, ongoing costs and loss of customers.
14.4 In all instances, HB8s liability for damages in relation to a single order shall be limited to the value of the order in question determined as the aggregate purchase price, excluding VAT.
15. Force majeure
15.1 The Buyer may not exercise remedies for breach vis-à-vis HB8 if delayed delivery is due to events beyond the control of HB8, when such event prevents the performance of the agreement or renders the performance unreasonably burdensome, such as fire, acts of war, mobilisation, labour disputes, seizures, currency restrictions, riots and insurrections, general scarcity of goods as well as defects in or delays of deliveries from sub-suppliers.
15.2 If HB8 wishes to claim exemption from liability due to force majeure, HB8 shall inform the Buyer hereof in writing within a reasonable period of time.
16. Governing law and venue
16.1 These terms of sale and delivery shall be governed by Danish law.
16.2 Any disputes between the parties concerning these terms of sale and delivery or their construction shall be settled by the Court of Viborg, Denmark, or, if the dispute is subject to high court hearing, the High Court of Western Denmark.
16.3 HB8 shall also be entitled to instigate legal proceedings at the court of the judicial district in which the Buyers place of business is located.
16.4 The parties shall be mutually obliged to subject themselves to legal proceedings at the court of law treating claims for damages concerning product liability filed against either party by a third party.