Merxway ApS General Terms and Conditions of Sale and Delivery
Sales and deliveries of Merxway Aps (“Seller”) products shall be made exclusively in accordance with the following General Terms and Conditions of Sale and Delivery (“Terms of Delivery”), which shall be accepted by the Buyer by the placing of an order or the receipt of delivery. They shall also apply to all future transactions of Seller with the Buyer. The application of the Buyer’s conflicting or supplementary terms and conditions shall be excluded, even if such terms and conditions are not expressly objected to by Seller. Individual agreements and agreements within distributor agreements supersede these General Terms and Conditions.
2. Definitions and General Provisions
The following terms as used in these General Sale and Warranty Terms and Conditions (”Terms & Conditions”) shall have the meanings as set forth below:
- ”Seller” means Merxway ApS
- ”Buyer” means an individual (natural person) or a legal person (body corporate) other than consumers, as named in the Purchase Order.
- ”Parties” means the Seller and the Buyer.
- ”Goods” means a product or service sold or supplied;
- ”Enquiry” means a written enquiry made by the Buyer to the Seller with a request for the Seller’s proposal;
- ”Proposal” means the Seller’s statement made to the Buyer in response to an Enquiry;
- ”Purchase Order” means the Buyer’s statement made to the Seller and expressing the Buyer’s intention to enter into a contract and such details as may be required in a contract, such a statement to be made in writing or by electronic means, provided that such a statement made by phone or by electronic means must be confirmed in writing in accordance with these Terms & Conditions;
- ”Purchase Order Confirmation” means the Seller’s written statement confirming that a Contract has been entered into.
- ”Contract” means a proposal, a purchase order, a purchase order confirmation and the general terms and conditions of sale;
- ”Incoterms” means INCOTERMS 2010
2.1 These Terms & Conditions are issued in electronic form only. They are provided to the Buyer in the form of a computer file in a widely used format and available on the website of Seller (www.durasweeper.eu) for the Buyer to download, keep and use in the normal course of its business.
2.2. By placing a Purchase Order with the Seller, the Buyer is deemed to have accepted and agreed to these Terms & Conditions.2.3 Any and all information and/or specifications provided by the Seller orally must be confirmed in writing to be valid.
2.4. The validity or exclusion, including contractually, of any provision of these Terms & Conditions shall not render any other provisions of these Terms & Conditions invalid or excluded.
2.5. These Terms & Conditions shall apply to all contracts including Contracts of Sale of the Goods as made by and between the Seller and the Buyer, unless any mandatory provision of law or any separately agreed provision of any contract provides otherwise.
- Contract Conclusion Procedure
3.1 Offers of Seller shall be nonbinding. A contract shall not become effective until it has been confirmed by the Seller in a written confirmation of order and shall be governed exclusively by the written contract and these Terms of Delivery.
3.2 The Buyer shall place a Purchase Order for the requested equipment by electronic mail to the following E-mail: email@example.com. The Seller shall then confirm the Purchase Order, which shall be sent to the Buyer within five (5) business days and which, bearing the ordering person’s legible signature, shall be sent to the Seller by electronic mail. If the Purchase Order is placed in writing with the Buyer’s legible signature, the Seller shall confirm the Purchase Order only.
The person signing any statement on behalf of the Seller or the Buyer shall be deemed to be duly authorized to make binding statements on behalf of the respective Party.
3.3 Each Purchase Order placed by the Buyer in writing should contain the following: the name of the requested goods, the requested quantity of the goods, the Buyer’s billing details necessary to issue a VAT invoice, such address and phone contact details as may be necessary to contact the person responsible for the Purchase Order, a legible signature of the person authorized to place Purchase Orders on behalf of the Buyer.
3.4 Together with its first Purchase Order, the Buyer, if it is established in an EU Member State, has to provide its EU VAT number, and the Seller may require the Buyer to provide an extract of its entry in relevant the business register in the country of the Buyer’s establishment.
3.5 The contract between the Buyer and the Seller shall be concluded upon the Seller’s receipt, from the Buyer, of the Purchase Order Confirmation, if the Purchase Order was placed in writing, upon the Seller’s delivery of the Purchase Order Confirmation sent to the Buyer by electronic mail.
3.6 A change to the Contract at the request of the Buyer may result in a change of the delivery date and the price of the requested goods.
3.7 No agreements, warranties, covenants and representations made or given orally by the Seller’s personnel in connection with the conclusion of a contract or the submission of a proposal shall be binding.
- Withdrawal from the Contract
4.1 In the event of the Buyer’s failure to perform any of its obligations contained in these Terms & Conditions and/or in the Contract, the Seller may withdraw from the Contract within 5 business days, unless these Terms & Conditions and/or the Contract provide(s) otherwise.
4.2 Subject to all mandatory provisions of law, the Seller shall not liable to the Buyer for any loss or damage resulting from the Seller’s withdrawal from the Contract in accordance with Clause 4.3.
4.3. In the event of the Buyer’s failure to make the required prepayment within the time period specified in Clause 5.3, the Seller may withdraw from the Contract within 14 days of the deadline for the prepayment. In the event of withdrawal from the Contract in the case described in this clause, the Buyer shall pay the Seller, as liquidated damages, an amount equal to 10% of the value of the Goods, and the Seller may seek compensation in excess of such liquidated damages if the same does not compensate for the full value of the loss or damage suffered by the Seller.
- Prices, Terms of Payment
5.1 The requested Goods shall be purchased by the Buyer at the price applicable at the time of placing a Purchase Order for the Goods or at such a price as may be stated in the Seller’s Proposal, the prices to be expressed in EUR on Ex-Works basis (Incoterms 2010), unless the Parties agree otherwise in writing. At the Buyer’s request, the Seller shall notify the Buyer of its applicable prices.
5.2 All prices of Seller stated are net prices exclusive of Value Added Tax (VAT) and other taxes and duties and do not include any shipment, unloading costs, and assembling & installation costs. The Buyer shall bear any public charges such as possible customs duties, which may arise in connection with the import of the deliverables in the country of destination, applicable taxes, charges and other levies.
5.3 The 50% of advanced payment is payable before delivery. Such a prepayment to be made by the Buyer within 3 (three) days of the date of the corresponding Purchase Order Confirmation.
The prepayment shall not be refunded and shall be credited against the Buyers payment. The payment shall be made in Euro to the Bank Account indicated on Commercial Invoice. The Buyer shall be in default of payment if this period lapses.
5.4 The rest of 30% of payment shall be due and payable on delivery (when goods are ready for shipment), the last 20% of final payment no later than 14 days from delivery.
5.4 Payments by the Buyer shall not be deemed to have been made until Seller has received such payment into Seller´s bank account and can exercise control over the funds.
5.5 The Buyer shall meet the deadlines for payments and for the collection of the ordered equipment. Unless the Contract provides otherwise, the purchase price increased by the applicable taxes, charges and other levies, at such rates as may be applicable at the time of delivery of the ordered equipment according to the agreed terms of INCOTERMS, plus any and all additional amounts, shall be paid by the Buyer into the Sellers bank account within such a time period as agreed upon by the Parties on a case-by-case basis, but not later than before the date of receipt of the goods or, with the Seller’s written consent, within 14 days of the receipt of the goods, unless the Parties agree otherwise in writing.
5.7 If the payment of the invoice is to be made within a specified time period, the Seller may require the Buyer to provide the following (without limitation) as security for the payment:
- a) a surety,
- b) a bank guarantee or an insurance guarantee as security for the payment of the purchase price and the costs of delivery of the Goods.
5.8 In the event of the Buyer’s delay in payment for the Goods, the Seller may charge statutory interest for each day of such delay of 0,5% per day of the default price until the day of the final settlement, plus 8 (eight) percentage points for recovery cost. (In accordance with Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, late-payment interest shall accrue automatically without any written notification and irrespective of any compensation due for such delay in payment, as of the day following the deadline for payment as specified on the invoice and with respect to all payments not made by the deadline for payment).
5.9 In the event of the Buyer’s delay in payment for the Goods sold under the Contract, all other amounts owed by the Buyer to the Seller (including under other Contracts) shall become immediately due and payable upon the Buyer’s receipt of the Seller’s notice. In addition, in such a case, the Seller shall have the option to either:
- a) refuse to release any Goods not yet delivered to the Buyer, also if the obligation to release the Goods is an obligation under a Contract other than the Contract under which the payment terms were not complied with; and/or
- b) withdraw from other Contracts made with the Buyer, without setting any additional time limits and within 30 days of the date of the default referred to in Clause 5.8 above arising; and/or
- c) require the Buyer to remedy the loss or damage resulting from the Buyer’s delay in payment.
5.10 The Seller may require the Buyer to return the delivered goods immediately, if the Buyer is in arrears with payment of the purchase price for the goods or if the Seller has reasonable grounds to believe that the Buyer will not comply with its obligations due to its financial standing.
5.11 Subject to all mandatory provisions of law, the Seller shall not be liable for any loss or damage suffered by the Buyer as a result of the Seller’s exercise of its rights under 5.9 Clause.
5.12 If Seller becomes aware of the Buyer’s prospective impossibility to perform after the conclusion of the contract, Seller shall only be entitled to make any outstanding deliveries against prepayment or the provision of adequate security. If such prepayments or security have not been rendered even after the expiration of a reasonable grace period set by Seller, Seller may – notwithstanding any further rights – partially or totally rescind individual or all contracts with the Buyer. Seller shall be entitled to assert any further rights it may have.
5.13 The prices quoted for service work are a best estimate on the basis of the available information and such prices are to be considered as estimates, unless otherwise agreed in writing.
- Delivery Periods and Deadlines
6.1 The place of release of the Goods shall be the manufacture warehouse or manufacture factory unless the Parties agree otherwise. All products shall be delivered on an Ex-Works basis, unless the Parties agree otherwise in writing. (The ExWorks basis means that the Buyer shall collect the ordered goods using its own vehicles or third-party vehicles. The Seller ‘s liability for any loss of or damage to any goods shall cease upon the loading of the goods into or onto a vehicle, in which case the liability for any loss of or damage to the loaded goods shall pass to the Buyer).
6.2 In the event of the Buyer’s failure to collect the goods delivered to the Buyer on an Ex-Works basis, the Seller may – issue an invoice for the goods delivered after the expiry of the deadline for their collection, and the Buyer shall pay the invoiced amount whether or not the goods have actually been collected; – charge the amount of EUR 60 plus VAT from the Buyer for each day of its delay in collecting the goods as the cost of storing the goods after the deadline for collecting the goods.
6.3 The Buyer shall, within 2 (two) business day of the conclusion of a contract, be notified of the date of release of the ordered Goods to the Buyer. The Buyer may, at any time, obtain information on the progress of the contract. Partial deliveries may be made.
6.4 If the date of release of the Goods is changed (the release or delivery of the Goods is delayed), the Buyer shall, within 3 (three) days, be notified of a new date of release or delivery of the Goods.
6.5 Delivery deadlines and delivery periods are only binding if they have been confirmed by the Seller in writing, if the Buyer has provided the Seller in a timely manner with all information or documentation required for the performance of such delivery and if the Buyer has paid any advance payments in the manner and amount agreed by the
parties. Delivery periods agreed by the parties shall begin on the date of the confirmation of the respective agreed prepayment. In the event of additional or supplementary contracts, the delivery periods shall be extended accordingly. If the Seller find that the agreed time of delivery cannot be complied with, or that a delay must be considered likely, the Buyer will be informed accordingly, and if at all possible the Buyer will be informed of the time when delivery is expected to be made.
6.6 Events which are unforeseeable, unavoidable and lie beyond the sphere of influence of the Seller and for which the Seller is not responsible, such as force majeure, war, riots, transport disruptions, and natural disasters, third party deliveries, shall release the Seller for their duration from its obligation to make timely delivery or perform timely.
Periods agreed upon by the parties shall be extended by the length of such disturbance, and the Buyer shall be informed of the occurrence of such disturbance in a reasonable manner. If the end of such disturbance is not foreseeable, or should it continue for more than three months, each party is entitled to rescind the contract.
6.8 In the case of delays caused by fault and negligence on the part of the Seller the Buyer may –if the delay exceeds 20 weeks-negotiate with the Seller to find a new reasonable deadline. If a new deadline is widely exceeded because of fault and negligence on the part of the Seller, the buyer may cancel the contract by notifying the Seller accordingly in writing.
6.9 Should the Buyer be in default of the acceptance of delivery or should it be in breach of any other obligations to cooperate with the Seller, the Seller shall be entitled to reasonably store the deliverables at the Buyer’s risk and expense.
6.10 No matter if the contract is canceled or not, the Seller is not liable for operating loss, loss of profit or any other direct or indirect loss which the Buyer or his Buyer may incur.
- Shipment, Passage of Risk, Insurance
7.1 In the absence of any other instruction by the Buyer, shipment shall be made using a reasonable method of shipment in the usual manner of packaging.
7.2 The risk of loss shall pass from the Seller to the Buyer as per “Incoterms 2010” Ex. Works (The Ex-Works basis means that the Buyer shall collect the ordered goods using its own vehicles or third-party vehicles. The Seller ‘s liability for any loss of or damage to any goods shall cease upon the loading of the goods into or onto a vehicle, in which case the liability for any loss of or damage to the loaded goods shall pass to the Buyer).
Title of Goods shall pass from Seller to the Buyer upon Seller´s receipt of payment. All machines and equipment supplied remain the property of Seller until the entire cost of the purchase price payable has been paid in full. Should the delivery or shipment be delayed on grounds for which the Buyer is responsible, the risk shall pass to the Buyer on the date on which the Buyer is notified that the deliverables are ready for shipment.
7.3 Insurance shall be taken out only upon request and at the expense of Buyer.
- Retention of Title
8.1 The delivered products shall remain the property of Seller until any and all claims of Seller arising under its business relationship with the Buyer have been fully paid.
8.2 In the case of current accounts, this retention of title shall be deemed to be security of the claim for the balance to which Seller is entitled.
8.3 The Buyer is not entitled to pledge the Secured Products, transfer them by way of security or make other dispositions endangering Seller’s title to them.
8.4 The Buyer shall provide Seller at all times with all desired information concerning the Secured Products or claims assigned to Seller under this contract.
8.5 The Buyer is obliged to treat the Secured Products with care for the duration of the retention of title.
8.6 Should the realizable value of the securities exceed all of Seller’s claims secured by the Secured Products by more than 10 %, the Buyer shall be entitled to demand a release to such extent.
8.7 Should the Buyer be in default of material obligations such as payments to Seller, Seller may, notwithstanding any other rights, take back the Secured Products and, after rescission of the contract, otherwise realize on them for the purpose of satisfying its matured claims against the Buyer without prejudice to any other rights it may have. In such case, the Buyer shall grant Seller or Seller’s agents immediate access to the Secured Products and surrender the same. If Seller demands surrender according to this provision, this alone shall not constitute rescission of the contract.
8.8 In the case of deliveries to other jurisdictions in which the foregoing provisions governing the retention of title do not have the same security effect as in Denmark, the Buyer shall do everything to create equivalent security rights for Seller without undue delay. The Buyer shall cooperate in all measures such as registration, publication, etc. which are necessary and beneficial to the validity and enforceability of such security rights.
8.9 On Seller’s demand, the Buyer is obliged to insure the Secured Products appropriately, to provide Seller with the respective proof of such insurance and to assign the claims arising from such insurance to Seller.
- Characteristics, Duty to Inspect the Products
9.1 Upon passing of the risk the delivered products shall be of the agreed quality. The quality will exclusively be determined by the specific written agreements concerning the characteristics, features and specifications of the deliverables.
9.2 Information provided in sales catalogues, price lists and any other informative literature provided by Seller or any other descriptions of the deliverables shall under no circumstances constitute a guarantee for any specific quality of the deliverables; such specific quality guarantee must exclusively be made in writing.
9.3 Seller reserves its right to change the deliverables slightly with regard to its construction, material and/or its finish to the extent its agreed characteristics are not changed thereby.
9.4 The Buyer’s warranty rights shall require that it inspects the delivered products upon delivery without undue delay and notifies Seller immediately in writing following delivery. If the Buyer has not complained in writing within 3 days from the time of delivery the Buyer loses his rights to make any claim in this connection.
9.5 In the event of any notification of a defect, Seller shall have the right to inspect and test the products to which objection was made. The Buyer will grant Seller the required period of time and opportunity to exercise such right. Seller may also demand from the Buyer that it returns the product to which objection was made to Seller at Seller’s expense.
9.6 If the delivered product contains a defect subject to warranty obligation, Seller shall be entitled to remove the defect at its option by remedying the defect. Replacement parts and repaired parts are delivered Ex Works. The Buyer shall give Seller the necessary reasonable period of time for performance.
9.7 Items that have been replaced by Seller shall, upon Seller’s demand, be
returned to Seller.
9.8 If the decision of which part of the equipment that needs to be repaired or replaced, or a decision as to dismounting of such equipment, calls for special expertise which the Buyer does not command, and if it would be highly disturbing and costly to send the equipment as a whole to Seller, alleviation will be carried out at the Buyers plant. The Buyer must pay for travel and accommodation.
9.10 The statute of limitations for claims for defects shall be twelve months from the hand-over of the deliverables to the Buyer.
9.11 The Seller shall issue a warranty document to confirm the warranty granted to the Buyer.
9.12 The Seller warrants the quality of the equipment delivered to the Buyer in accordance with the warranty terms and conditions applicable on the date of the contract, as posted on the www.durasweeper.eu website, for such a period of time as specified in the warranty document.
- Limitation of Seller´s Liability
10.1 Seller’s statutory liability for damages shall be limited as follows:
- a) Seller shall only be liable for damages caused by a slightly negligent breach of a material contractual obligation up to the amount of the typically foreseeable damage at the time of entering into the contract;
- b) Seller shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
10.2 In no event, whether as a result of breach of contract or warranty or alleged negligence or liability without fault, shall Seller be liable for special, incidental or consequential damages including, without limitation, loss of profit or revenue, cost of capital, cost of substitute equipment, personal injuries, facilities or services, downtime costs, labor costs or claims of customers, purchasers or lessees for such damages. In no event will guarantee compensation, or other damages available from the Seller exceed the purchase price of the product.
10.3 The Seller shall not be liable for failure to perform or inappropriate performance of its obligations, including for any delay referred to above, and if such failure to inappropriate performance is the result of force majeure circumstances. The Parties agree that ‘force majeure’ shall mean, in particular, the following:
- a) any circumstances as a result of which the Seller’s performance under a Contract (the execution of a given Purchase Order) is impossible or unreasonably expensive given the value of the Goods to be delivered;
- lack of or delay in the delivery of products, raw materials, materials and services necessary to perform the Contract (to execute a given Purchase Order);
- war, riots, rebellion;
- natural disasters;
- transport disruptions;
- any other similar event.
- b) In addition, the Seller shall only be liable for loss or damage suffered by the Buyer as a result of the Seller’s willful misconduct or gross negligence. All other liability of the Seller is hereby excluded.
10.4 The Buyer is solely responsible for ensuring that the Goods may be used by the Buyer and its customers for specified purposes and in a particular way. The Seller shall not be liable for any losses suffered by the Buyer as a result of the Buyer’s misuse of the Goods, unless the Seller assured the Buyer in writing that the Goods were intended for such particular purposes.
10.5 The Buyer shall take all reasonable measures necessary to avert and reduce damages.
11.1 The Parties agree that they shall not make any product copies or use the idea for future developments, do not disclose any confidential information, to any third parties or shall not use the same for purposes other than the performance of the obligations under these Terms & Conditions and Contracts.
11.2 The Buyer shall take all reasonable steps to prevent the disclosure of confidential information.
11.3 Without the written consent of the Seller, the Buyer may not use the name, trademarks or trade names of the Seller, nor may the Buyer refer to its business relations with the Seller for any purposes whatsoever.
11.4 The Seller retains all rights in the sales documentation (in particular pictures, drawings, technical data about the product, user manual, etc.) and the samples. These items must not be used for any other purpose or made available to third parties and must be returned to the Seller without undue delay on demand.
12.1 Amendments of and supplements to this contract and/or these Terms of Delivery and any side agreements must be in writing in order to become effective. The same shall apply to the waiver of or any amendment to this written form requirement.
12.2 Any dispute that may arise out of the legal relationship between the parties must be settled in accordance with Danish Law as well as the “Rules for the hearing of cases at the Danish Arbitration Institute (Copenhagen Arbitration). Either party appoints arbitrator while the Danish Arbitration Institute appoints the umpire of the arbitration court. If, within 30 days of having filed or being notified of a request for an arbitration case, either party has not appointed an arbitrator, this arbitrator is also appointed by the Danish Arbitration Institute in accordance with its own rules of procedure. The arbitration court sits in Copenhagen. The language of arbitration court is Danish.
12.3 The parties are aware of the risk that individual or multiple provisions of the contract or of these Terms of Delivery may turn out to be invalid or null and void contrary to the parties’ current understanding. But even if this happens to be the case, the parties want to eliminate any doubts regarding the validity of the remainder of the contract and/or these Terms of Delivery, which shall in any event remain valid and enforceable. In such case, the parties undertake to replace the invalid provision by a valid provision coming closest to the commercial purpose of the invalid provision.