Scope of Applicability
The General Terms and Conditions of Sale (“GTCS”) apply to all sales of goods by FOAMICO notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other communication from you. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by FOAMICO unless and until FOAMICO expressly confirm FOAMICOs acceptance in writing.
FOAMICO reserve the right to change these GTCS at any time. FOAMICO will give you thirty calendar days’ notice of any changes by posting notice on FOAMICOs website.
Offers, Purchase Orders and Order Confirmations
All offers made by FOAMICO are open for acceptance within fifteen calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the goods offered.
All purchase orders issued by you shall specify as a minimum the type and quantity of goods requested, applicable unit prices, delivery place and requested delivery dates. No purchase order shall be binding on FOAMICO unless and until confirmed by FOAMICO in writing.
Prices and Terms of Payment
The prices for goods shall be those set forth in the order confirmation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
Unless expressly stated otherwise in the order confirmation, payment for goods shall be made prior to delivery of the goods without offset or deduction.
You must submit such financial information from time to time as may be reasonably requested by FOAMICO for the establishment or continuation of payment terms. FOAMICO may in its sole discretion at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
If you fail to pay any invoice within seven calendar days of the duedate of payment, FOAMICO may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to you within seven calendar days of the expiration of the grace period. Further, FOAMICO may charge you interest fromthe duedate to the date of payment at the rate of 2% per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which FOAMICO are or may be entitled at law or in equity.
Title to goods delivered shall remain vested in FOAMICO and shall not pass to you until the goods have been paid for in full. If you fail to pay any invoice within fourteen calendar days ofthe duedate of payment, FOAMICO may retake the goods covered by the invoice. You must insure all goods delivered to their full replacement value until title to the goods has passed to you.
Terms of Delivery and Late Delivery
Unless expressly stated otherwise in the order confirmation, all deliveries of goods shall be EXW in accordance with Incoterms 2000. The risk of loss of or damage to goods shall pass to you in accordance with the agreed delivery term.
The delivery dates of goods shall be those set forth in the order confirmation. If FOAMICO fail to deliver goods within thirty (30) calendar days of the agreed delivery date, you may terminate the applicable purchase order in whole or in part (as to those goods affected by the delay) by providing written notice of termination to FOAMICO within seven calendar days of the expiration of the grace period.
Further, FOAMICOs responsibility for the loss that you may suffer as consequence of the delay or the lack of delivery shall under no circumstance exceed 10% of FOAMICOs sales price to you.
FOAMICO reserve the right to make delivery in instalments.
Acceptance of goods
You must inspect goods delivered upon receipt. You are deemed to have accepted goods delivered unless written notice of rejection specifying the reasons for rejection is received by FOAMICO within five calendar days after delivery of the goods.
FOAMICO warrant that upon delivery and for a period of twelve (12) months from the date of delivery goods purchased hereunder will conform in all material respects to the applicable manufacturer’s specifications for such goods and will be free from material defects in workmanship, material and design under normal use. The warranty does not cover damage resulting from misuse, negligent handling, lack of reasonable maintenance and care, accident or abuse by anyone other than FOAMICO. Further, the warranty does not cover wear and tear on consumables, hereunder hoses, low pressure valves, non-return valves and nozzles.
With respect to goods which do not conform to the warranty, FOAMICOs liability is limited, at FOAMICOs election, to (i) refund of the purchase price for such goods less a reasonable amount for usage, (ii) repair of such goods, or (iii) replacement of such goods; provided, however, that such goods must be returned to FOAMICO, along with acceptable evidence of purchase within fourteen calendar days after you discovered the lack of conformity or ought to have discovered it.
FOAMICO makes no other warranty, express or implied, with respect to goods delivered hereunder, and the warranty constitutes FOAMICOs sole obligation in respect of any lack of conformity of goods delivered hereunder (except title). In particular, FOAMICO makeno warranty with respectto the merchantability of goods delivered or their suitability or fitness for any particular purpose.
Limitation of Liability
Neither of the parties will be entitled to, and neither of the parties shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, loss of data, injury to reputation or loss of customers. Your recovery from FOAMICO for any claim shall not exceed the purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
FOAMICO shall not be liable for any claims based on FOAMICOs compliance with your designs, specifications or instructions or repair, modification or alteration of any goods by parties other than FOAMICO or use in combination with other goods.
Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party.
Settlement of disputes
For sales to customers in Denmark any dispute between the two parties shall be settled at the Court of Aalborg, notwithstanding that the nature of the dispute may be a High Court case.
For sales to foreign customers any dispute shall be settled in accordance with the rules and regulations of the Danish jurisprudence at the Court “Sø- & Handelsretten” in Copenhagen.
Norresundby May 2012