1. Interpretation and scope
In these Conditions the following expressions shall have the following meanings:
The Seller/HBC System Smarttool Production ApS, a Danish registered limited company (CVR-NR. 29395195).
The person, firm or company contracting to purchase goods from the Seller
The goods which are to be sold by the Seller to the Buyer
The Contract for the sale of the Goods by the Seller to the Buyer
Particulars of Contract
The details of the Contract agreed in writing between the parties shall include in writing telex, telegrams and cablegram.
Unless otherwise stated in the confirmation of order forwarded by HBC Systems the terms of sale and delivery of HBC Systems shall be binding on the parties and shall set aside all agreements and customs contrary to these terms, including terms worked out and forwarded by the Buyer.
2. Construction of contract
The terms of the Contract shall consist of the Particulars of Contract these Conditions of Sale and any other terms agreed in writing by HBC Systems. In the event of any discrepancy between the Particulars of Contract and these Conditions the Particulars of Contract shall prevail.
No terms contained in any document issued by the Buyer or any oral communication between the parties shall apply to the Contract nor shall these Conditions or the Particulars of Contract be modified without the written agreement of the Seller.
In order that the Contract shall be a complete statement of the understanding between the parties with regard to the sale of the Goods, the Buyer must ensure that any pre-contractual representation on which it wishes to rely has been expressly incorporated into the Contract by written agreement by HBC Systems. In entering into the Contract, the Buyer does not rely upon any such representation made by or on behalf of HBC Systems which has not been so incorporated.
Descriptions and illustrations of the Goods submitted with any quotation, or contained in any catalogue, are only a general representation of the Goods and are not intended to be reliable with regard to details, as improvements are constantly being made.
No independent person/company such as an agent, a representative, or a broker, shall be entitled to bind HBC Systems unless a written agreement has been concluded to that extent.
4. Quotations and orders
Unless accepted before lapse or withdrawal, quotations made by the Seller shall automatically lapse after 60 days, but may be withdrawn earlier.
The Seller’s quotation is merely an invitation to treat. There shall be no contract until the Seller has accepted the Buyer’s order in writing, and no employee or agent of the Seller has authority to contract in any other manner.
All prices, including prices in the price list prepared by HBC Systems, are today's prices ex-works and exclusive of added-value-tax, other public charges and packing. HBC Systems reserves the right at 30 days' notice to alter price lists and catalogue material.
The price is exclusive of work caused by defective materials delivered by the Buyer and overtime due to work having to be carried out quicker than usual; furthermore the price is exclusive of storage of completed work.
The price is based upon the rate of exchange at the time of conclusion of the agreement. Subsequent exchange fluctuations of more than 5 per cent shall entitle HBC Systems to adjust their prices accordingly.
6. Terms of delivery
Delivery is effected according to Incoterms EXW, Incoterms 2000, according to which – the goods being finished and ready for delivery – the Buyer bears the risk and any costs of delivery including transport charges. The Buyer is obliged to state his wishes in good time as to the method of transportation. Otherwise HBC Systems shall be entitled to choose mode and route of transport.
If delivery is delayed, HBC Systems shall be obliged to notify the Buyer immediately. In case the delay is considerable the Buyer shall be entitled to give notice to the Seller requiring the Goods to be dispatched within 30 days of the date of such notice, following the expiry of which period the Buyer shall as its sole remedy have the right to give further written notice determining the Contract forthwith in respect of such of the Goods as shall not then be ready for despatch but this right shall not be exercisable if the extension of the delivery time is attributable to any act of default on the part of the Buyer. In case the time of delivery is exceeded by more than 60 days the delay can be referred to as considerable. The Buyer cannot assert the above claims if the delay is due to affairs of the Buyer or a sub-supplier. In any case the Buyer cannot claim for damages for indirect loss, including compensation for the loss of use of the products and trading loss, or assert any further claims.
In case the Buyer does not accept delivery at the time agreed upon, for example by violating his obligation to collect the goods HBC Systems shall be entitled to cancel the agreement and claim damages. HBC Systems shall further be entitled to sell or store the goods for the Buyer's account. Storage of the goods shall be at the Buyer's risk.
The delivery of a greater or lesser quantity of the Goods than the quantity provided for in the Contract, the delivery of other goods not provided for in the Contract or the delivery of Goods only some of which are defective, shall not entitle the Buyer to reject all the Goods delivered or to terminate the Contract in whole or in part. Any claim in respect of error in quantity or type of Goods or in respect of the condition of Goods delivered must be made in writing to the Seller within 10 days of receipt of the Goods by the Buyer.
Any damage to the Goods in transit must be reported in writing to HBC Systems within 3 Days of receipt of the Goods by the Buyer. The Buyer shall be obliged to examine the goods immediately at receipt and not later than 3 days after the receipt to give notice of any defaults. In case the Buyer does not observe the time fixed any claim will be forfeited. The Buyer must notify the Seller immediately if any Goods are not received by the Buyer within 30 days of the date on despatch, as notified by the Seller.
Return of goods and packing can only take place according to previous written agreement and shall be effected for the Buyer's account. The Buyer shall not be credited with pallets, boxes or any other packing being separately charged.
7. Terms of payment
Payment shall be effected cash on delivery (COD).
In case the Buyer may be insured with GERLING EKR the Buyer may be granted 30 days' credit up to the sum guaranteed by EKR.
In case payment is delayed an interest of 2,0 per cent for every month or part of a month shall be charged from the date of payment until payment is effected.
The Buyer shall not be entitled to make use of the purchase amount or part thereof as a set-off; just as the Buyer´s complaint pursuant to clause 9 shall not entitle the Buyer to withhold the purchase amount.
Goods are sold with retention of title according to which HBC Systems shall be entitled to take back the sold goods in case the Buyer - wholly or partly - violates his obligation to pay.
In case the Buyer violates one or more of the obligations stated, including his obligations pursuant to clause 5, HBC Systems shall be entitled to cancel the agreement to sell the goods for the Buyers account to another person/company and/or to claim damages. HBC Systems may claim damages for any loss, including any indirect loss.
The guarantee includes only products proved to be considerably defective due to a defective production or due to the use of faulty materials delivered by HBC Systems. The guarantee applies solely in case the goods have been properly stored and properly used by the Buyer for usual purposes according to the specifications of HBC Systems. HBC Systems is not responsible for defects due to insufficient maintenance, improper mounting carried out by the Buyer, changes made by the Buyer without the written consent of HBC Systems, or repairs carried out imperfectly by the Buyer or a third party.
If the product is held to be considerably defective HBC Systems shall at its own option be obliged and entitled to rectify the defect, make replacement delivery, allow a proportional reduction in the price, or pay damages. Transport, insurance, travelling, mounting and other expenses connected with the remedy or replacement of the product are to be paid by the Buyer. The liability of HBC Systems to pay damages is maximised to the invoice price of the defective product and HBC Systems may under no circumstances be made liable to pay damages for indirect loss such as compensation for loss of use and loss of profits.
The guarantee does not comprise normal wear and tear and deterioration.
HBC Systems shall not be liable for defective materials or semi-products supplied by the Buyer or materials prescribed by the Buyer which are unfit for the purpose.
The liability period terminates at 24 months from the date of sale.
9. Force majeure
HBC Systems shall not be liable to pay damages for not having fulfilled its obligation if HBC Systems can prove that this is due to a hindrance beyond the company's control such as, but not limited to war, acts of war, fire, strike, lock-out, export and import prohibitions, embargo, delayed or insufficient delivery of materials from sub-suppliers, production stoppage or lack of energy or transport possibilities.
In such cases HBC Systems shall be entitled to extend the time of delivery accordingly or to cancel the agreement. As soon as the hindrance has ceased to exist each of the parties shall fulfil their obligations pursuant to the agreement unless HBC Systems has previously cancelled the agreement. A hindrance lasting more than 3 months shall entitle each party to cancel the agreement.
10. Product liability
The rules and provisions pursuant to the Danish Act of Product Liability shall apply at any time. HBC Systems cannot be charged with liability exceeding that imposed by the indispensable legislation. HBC Systems shall not be liable for any trading loss, loss of profits, or any other indirect loss unless so ordered by the indispensable legislation. The liability of HBC Systems to pay damages for product liability is maximised to an amount of € 1.300.000.
In case HBC Systems is held liable beyond the liability stated above the Buyer shall be liable to indemnify HBC Systems accordingly. The Buyer shall be obliged to let himself sue before the same court/arbitration tribunal as the one that hears the case of HBC Systems’ product liability.
11. Protection of rights
The Buyer shall not acquire any rights to the industrial properties of HBC Systems through this agreement just as the Buyer shall not be entitled to abuse any information of the product and/or the product causing a violation of Buyer´s rights.
Where any of the Goods or their packaging are produced to the Buyer’s specification, the Buyer shall indemnify the Seller against all action, claims, cost, damages or losses arising from any infringement of any patent, registered design, trade mark, copyright or any similar protection in respect of the Goods or packaging so produced.
Any reference by the Seller to patents, copyrights, registered designs, trade marks, and analogous forms of protection shall not constitute a warranty of the validity thereof.
12. Designs and descriptions
All designs and technical documents concerning the materials or the production of it, passed to the Buyer before or after the conclusion of the agreement shall remain the property of HBC Systems and shall not without the consent of HBC Systems be used for other purposes than those of mounting, starting, operating and maintaining the materials. The material mentioned shall not without consent be used, copied, reproduced, passed to or in any other way be brought to the knowledge of a third party. The material must be returned at the request of HBC Systems.
Any notice required or authorised to be given hereunder shall be writing and may be served by fax, cable or mail letter sent to the last known address of the party to be served and shall be deemed to be served in the case of a fax at the time of sending, in the case of a cable twenty-four hours, and in the case of a letter seven days after proven despatch, provided that any other mode of service shall be valid if the said notice or other communication is actually received by the address.
14. Choice of law and arbitration
Any dispute arising out of this agreement shall be settled pursuant to Danish law.
Any dispute arising out of this agreement shall be settled finally by the courts of HBC System’s jurisdiction.