STANDARD TERMS AND CONDITIONS OF SALE
In these conditions, except where the context otherwise requires, the following words shall have the meanings: ‘The Company’: means Lyngsøe Rainwear ApS, a company registered in Denmark. ‘The Buyer’: means the person, firm or company with whom or with which the Company contracts subject to these conditions. ‘Contract’: means each Contract made or to be made between the Company and the Buyer subject to these conditions. ‘The Goods’: means the articles, products and all things, if any, including samples where relevant which form the subject matter of this Contract. ‘The Specification’ means any specification included in the Company’s acknowledgement of order.
2.1 The Company shall sell and the Buyer shall buy the Goods subject to these Conditions which supersede any other terms which the Buyer purports to apply or are applied by trade, custom or course of dealing. 2.2 These conditions may not be modified or varied unless the Company agrees in writing and the Company shall not be deemed to accept any other conditions, even if placed in a purchase order or any other communication from the Buyer. All orders are subject to these conditions and the placing of an order shall be considered as acceptance of these conditions.
3.1 A quotation by the Company is not an offer. Unless otherwise specified, quotations are valid for 30 days only and subject to withdrawal or revision at any time before acceptance of the Buyer’s order by the Company. 3.2 Each order for Goods by the Buyer is an offer by the Buyer to purchase the Goods subject to these Conditions. 3.3 No order submitted by the Buyer is accepted by the Company until the Company expressly confirms its written acceptance by means of a formal acknowledgment of order or, in the absence of any formal acknowledgment, when the Company delivers the Goods to the Buyer. An order accepted by the Company shall constitute a Contract on these Conditions and the Conditions set out in the Order. If there is any conflict or inconsistency between these conditions and the terms of an accepted order, the accepted order shall prevail to the extent of the conflict or inconsistency. 3.4 The Buyer must ensure that the terms of any order (including any specification supplied by the Buyer) are complete and accurate. 3.5 Unless otherwise agreed in writing the Company reserves the right to make any changes in the specification of the Goods which do not materially affect their quality or performance.
4.1 The price of the Goods shall be as referred to in the Seller’s acknowledgement of order or as may otherwise be agreed between the Buyer and the Company in writing. 4.2 All prices are subject to the addition of Value Added Tax at the appropriate rate. All prices quoted are exclusive of delivery charges.
5. SETTLEMENT TERMS
5.1 Invoices may be issued to the Buyer at any time on or after delivery of the Goods. 5.2 Unless otherwise agreed, payment of the price for the Goods is due in the currency specified and in accordance with any specific requirements identified in the Company’s acknowledgement of order within 30 days after the date of the Company’s invoice unless otherwise agreed provided always that payment will be due and payable immediately upon cancellation or termination of the Contract. 5.3 For the purpose of these Conditions, payment is received when received by the Company in cleared funds. 5.4 Unless otherwise agreed in writing payment by the Buyer shall be made without any deduction or set off. 5.5 Interest may be charged at a monthly rate of 2% (both before and after judgement) on overdue accounts from the date of invoice until payment. 5.6 If the Buyer fails to make any payment on the due date or the Buyer becomes or is declared insolvent or a resolution is passed for it to be wound up or if the Company otherwise believes the Buyer may be unable to pay its debts, the Company may cancel the Contract and/or suspend deliveries or performance to the Buyer. 5.7 The Company is entitled to set off sums owed by the Company to the Buyer against sums owed by the Buyer to the Company.
6.1 Delivery, unless the confirmation of order provides otherwise, shall be deemed to take place on the Goods being available to the Buyer or to the carrier for carriage to the Buyer at the Company’s premises. 6.2 Unless otherwise stated in the Company’s order acknowledgement all dates or times for the delivery of the Goods are estimates only, the Company shall use reasonable endeavours to deliver the Goods no later than the date or time stated, and in default of a date or time stated in the Company’s acknowledgement of order, the Goods shall be delivered within a reasonable time after the date of the order, which shall not be of the essence. 6.3 The Buyer reserves the right to deliver the Goods in instalments. Each delivery shall be a separate Contract. 6.4 If the Buyer fails to accept delivery it shall pay to the Company reasonable storage charges for any period subsequent to the date when delivery was refused during which the Buyer fails or neglects to collect or accept delivery of the Goods.
7. RISK AND TITLE
7.1 The risk in the Goods shall be passed to the Buyer on delivery. 7.2 Until full payment has been received by the Company for all the Goods howsoever supplied and all services rendered at any time by the Company to the Buyer property in the Goods shall remain in the Company; and the Buyer shall be free to sell the Goods in the ordinary course of its business. 7.3 Until ownership of the Goods passes to the Buyer or (if earlier) the Buyer exercises its rights under condition 7.2 in relation to particular Goods (and, in that case, thereafter in relation to all other Goods), the Buyer shall: 7.3.1 hold the Goods as the Company’s fiduciary bailee; 7.3.2 keep the Goods separate from all other goods held by the Buyer and readily identifiable as the property of the Company; 7.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; 7.3.4 maintain the Goods in a satisfactory condition, insured on the Company’s behalf for their full price against all risks; and 7.3.5 hold the proceeds of Insurance referred to in condition 7.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn account. 7.4 The Company may at any time recover Goods until they are owned by the Buyer. 7.5 The Company is entitled by its employees or other representatives to enter the premises of the Buyer where the Goods are stored (or where the Company has reasonable grounds to believe the Goods are stored) without notice:- 7.5.1 for auditing the Buyer’s compliance with condition 7.3; or 7.5.2 to recover the Goods under condition 7.4 and the Buyer shall at the request of the Company procure the right for the Seller, its employees and representative to enter any premises of any third party where the Goods are stored for either or both of these purposes. 7.6 If the Goods are sold by the Buyer before ownership of the Goods passes to the Buyer:- 7.6.1 the proceeds of sale which represent or are equivalent to the amount owed by the Customer to the Company in respect of the Goods shall be held by the date or time stated, and in default of a date or time stated in the Company’s acknowledgement of order, the Goods shall be delivered within a reasonable time after the date of the order, which shall not be of the essence. Customer upon trust by the Seller, and paid into a separate bank account designated for that purpose; and 7.6.2 the Company shall be entitled to trace the proceeds of sale into that bank account (or wherever the proceeds may in fact be located), and the Buyer authorises the Company to make enquiries of its bankers (or otherwise as appropriate) relating to those proceeds.
8. INSPECTION AND DELIVERY, SHORTAGES AND COLOUR MATCH
8.1 The Company warrants to the Buyer that the Goods will correspond with the Specification at the time of delivery. 8.2 The Company shall not be liable under this warranty (or any other warranty, condition or guarantee) if:- 8.2.1 the total price for the Goods has not been paid by the due date for payment; or 8.2.2 any defect in the Goods arises as a result of any information, drawing or specification supplied by the Buyer; or 8.2.3 any defect in the Goods arises due to fair wear and tear, wilful damage, negligence of the Buyer or any person into whose control the Goods may pass, abnormal storage or working conditions, failure to follow the Company’s instructions (whether oral or written), misuse or alteration or reworking of the Goods without the Company’s prior approval. 8.3 The Buyer shall inspect the Goods on delivery and any claim by the Buyer which is based on any defect in the quality or condition of the Goods must (whether or not delivery is refused by the Buyer) be notified to the Company within 14 days from the date of delivery or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect and in any event within 6 months of delivery. 8.4 If the Buyer does not notify claims in accordance with condition 8.3 then the Buyer shall not be entitled to reject the Goods; the Company shall have no liability for such defect or failure; and the Buyer shall be bound to pay the full price for the Goods concerned. 8.5 In the event the Buyer has a valid claim which has been notified to the Company pursuant to condition 8.3, the Goods shall be appropriately stored until the Company shall have had an opportunity to inspect them and thereafter the Company shall be entitled to replace the Goods free of charge or, at the Company’s option, refund to the Buyer the price (or a proportionate part of the price), but the Company shall have no further liability to the Buyer.
9.1 Goods correctly supplied may not be returned without the Company’s written agreement and against a returns number obtained from the company. Goods so returned must be consigned ‘carriage paid’ andaccompanied by a packing note stating the Company’s invoice number and date thereof together with the returns number and the reason for return. Returns will only be accepted if all items are in a new condition in its original packaging unbroken and unmarked. In all cases a restocking charge equal to 20% of the price paid for the goods will be imposed. 9.2 Any bespoke article or special order article which has been supplied to special requirements cannot be accepted for credit under any circumstances. 9.3 Good which are no longer stocked by the Company will not be accepted as returned for credit under clause 9.1.
10. LIMITATION OF LIABILITY THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
10.1 Subject to condition 8, the following sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Buyer in respect of any breach of these Conditions, any representation, statement, act or omission (including negligence) arising under or in connection with the Contract and in respect of any contemplated performance or lack of performance. 10.2 Except as expressly provided, all warranties, guarantees, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law. 10.3 Without prejudice to the general provisions of condition 10.1, the Company gives no warranty that the Goods are fit for any particular purpose or that their use by the Buyer will not infringe the intellectual property rights of any third party. 10.4 Subject to condition 8.5, the Buyer acknowledges that any recommendations given by the Company as to the use, application, storage, handling or disposal of the Goods (whether before or after delivery) in sales or technical literature or in response to an enquiry or in any other form are provided in good faith but the Buyer shall be responsible for assessing the suitability and appropriateness of such recommendations for itself (by trial processing if necessary) and the Company shall not have any liability for such recommendations. 10.5 Nothing in these Conditions excludes or limits the Company’s liability for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation. 10.6 Subject to condition 8.5, the Company shall not be liable to the Buyer for:- 10.6.1 any loss of profit, loss of production, financial loss, depletion of goodwill; and 10.6.2 any indirect loss, damage, costs or expenses whatsoever, which arise out of or in connection with the Contract or its contemplated performance or lack of performance. 10.7 In addition to any refund or replacement of the Goods under condition 8.5, the Company’s total liability under any Contract shall be limited to the price payable forthe Goods concerned.
11. DESCRIPTIVE MATTER AND ILLUSTRATIONS
All descriptive and forwarding specifications, sales catalogues, drawings, posters, point of sales materials and particulars of weights and dimensions issued by the Company are approximate only and are intended only to present a general idea of the Goods to which they refer and shall not form part of the contract.
12. INTELLECTUAL PROPERTY
12.1 Unless otherwise agreed, all intellectual property rights in the Goods shall belong to the Company including, without limitation, rights in all work and any idea, invention or improvement made by or on behalf of the Company whether pursuant to the Buyer’s commission or otherwise. 12.2 All drawings, posters, point of sale material descriptions and other information submitted by the Company shall remain the property of the Company together with the copyright therein.
13. BUYER’S OBLIGATIONS
The Buyer will ensure that all Goods are fitted and sold by experienced and trained personnel. Where appropriate the sales person should refer to any sales instruction pamphlet and the Buyer’s buyer should be given such after care instructions as have been supplied to the Buyer by the Company through point of sale or other means. If for any reason the Buyer does not know how to use or maintain the Goods properly he should specifically request the Company in writing to supply further information and/or explanatory leaflets for that purpose. The Buyer will keep the Company fully indemnified as a result of any accident or claim against the Company by a third party which arises as a result of the Buyer’s negligent act or omission howsoever it occurs.
14. FORCE MAJEURE
The Company will not be liable to the Buyer or be deemed to be in breach of the Contract because of any delay in performing or any failure to perform any of the Company’s obligations under the Contract if the Company is prevented hindered or otherwise delayed in performing its obligations due to any cause beyond its reasonable control. Such causes will include, but not be limited to, governmental actions, war or threat of war, national emergency, riot, civil disturbance, Act of God, fire, explosion, flood, epidemic or accident, import or export regulations or embargoes, labour disputes (including disputes involving the Company’s own work-force), reductions in or unavailability of power at manufacturing plant or breakdown of plant or machinery, unavailability of raw materials, fuel, parts, machinery from normal sources or routes of supply or at commercially reasonable prices.
15. GOVERNING LAW AND JURISDICTION
The Contract shall in all respects be governed by and construed in accordance with Danish Law and the Company and the Buyer shall submit to the jurisdiction of the Danish Courts.