Unless otherwise expressly agreed in writing, all offers and all resulting contractual relationship(s) (hereinafter “Contract”) between Fiberline Composites A/S, a company registered in Denmark under the Danish Business Registration no. (CVR) 13639108, and all its subsidiaries world-wide (hereinafter individually and together “Fiberline Composites”) and the customer (hereinafter “Customer”) shall be governed by these Terms of Sale and Delivery (hereinafter “General Terms”). Fiberline Composites and the Customer are hereinafter individually referred to as a “Party” and together the “Parties”.
Should the Customer in its offer, in its order or in any other way stipulate provisions which conflict with these General Terms, the General Terms shall take precedence, even in case Fiberline Composites fails to object to such conflicting provisions.
2. Quotations and conclusion of Contracts
Unless otherwise expressly agreed in writing, the quotations of Fiberline Composites will remain valid for 30 days. A Contract shall not be deemed concluded, until Customer has received a written order confirmation from Fiberline Composites containing an acceptance of Customer’s order.
Delivery clauses agreed between Fiberline Composites and the Customer shall be interpreted in accordance with the Incoterms in force at any time. Unless otherwise expressly agreed in writing, delivery takes place on EXW-terms (Ex Works) at Fiberline Com-posites’ relevant factory, in accordance with the Incoterms in force at any time. This means that delivery takes place and the risk for the purchased products passes to the Customer once Fiberline Composites has placed the products at the disposal of the Customer at the agreed place of delivery.
Unless otherwise expressly agreed in writing the prices informed by Fiberline Composites are exclusive of packaging. Unless otherwise agreed, the products will be delivered on either bearers or pallets. Small packages such as accessories and product samples will be sent by standard parcel post.
5. Intellectual property
The Parties shall retain their respective intellectual property rights and the information it has furnished to the other Party and no ownership of any kind regarding such rights passes to the other Party by the Contract, unless expressly stated in the Contract in writing.
The Customer warrants that its respective intellectual property rights do not infringe, dilute, or misappropriate any third-party rights, including intellectual property rights such as patents, trademarks, registered designs and copyright. The Customer shall indemnify and hold Fiberline Composites harmless against all claims of third parties and shall reimburse any expenses incurred, particularly the costs of claims made in and out of court and of the legal defence, to the extent that the relevant court/arbitration tribunal has ruled that the Customers’ intellectual property rights infringes a third party’s rights. The Parties shall cooperate in good faith in any defence against such third-party claim.
6. Manufacturing equipment
Compensation for any custom-made manufacturing equipment for Fiberline Composites’ manufacture of products for the Customer is agreed between the Parties. Fiberline Composites is responsible for the regular maintenance of the manufacturing equipment. Fiberline Composites has full title to the tools/manufacturing equipment. Fiberline Composites will only use the manufacturing equipment in question for the manufacture of products for the Customer, subject to the Customer having compensated Fiberline Composites for the costs of the manufacturing equipment.
In so far as product specifications are drafted by the Customer, the responsibility for engineering, “fit for purpose” etc. of the products shall rest with the Customer. Fiberline Composites shall not be liable for defects arising out of design and specifications stipulated or specified by the Customer.
Fiberline Composites is entitled to over/underdeliver by +/- 10% of the order, without this constituting a defect. Standard profiles will be supplied in the standard quality and tolerances of Fiberline Composites in force at any time.
Custom-made profiles will be supplied in the quality agreed with the Customer.
Price lists may be changed by Fiberline Composites without prior notice. Any such changes will affect all purchase orders that have not yet been confirmed by Fiberline Composites.
Orders not comprised by binding quotations will be invoiced at the price in force on the day of delivery.
9. Handling Costs
Unless otherwise agreed, minimum order size is DKK 3,000 (EUR 400) exclusive of VAT. For orders below this amount the difference will be charged as handling costs.
10. Payment and Interest on overdue Payments
Unless otherwise expressly agreed in writing, payment for the products shall take place within 8 days from the invoice date. In case of late payment, the Customer shall pay an interest of 2% of the overdue amounts for every month or part of a month from the invoice date until payment is effected.
All payments shall be made to the Fiberline Composites account stated in the invoice.
Fiberline Composites continuously endeavours to make delivery at the agreed time. In the event that Fiberline Composites has not made delivery at the agreed time of delivery, the Customer shall not be entitled to terminate the Contract and claim compensation for any damages or lost profits but be entitled to fix a final reasonable period of time within which delivery shall be made, which period of time shall not be less than two weeks. In the event that Fiberline Composites does not make delivery within the final reasonable time fixed by the Customer, and the delay is not attributable to force majeure, or circumstances for which the Customer is responsible, the Customer shall be entitled to liquidated damages from the date on which delivery should have taken place, cf. the final reasonable time fixed for delivery.
The liquidated damages shall be payable at a rate of 1 per cent of the purchase price for each commenced week of delay. The liquidated damages shall not exceed 7.5 per cent of the purchase price.
If only part of the products is delayed, the liquidated damages shall be calculated on that part of the purchase price which is attributable to such part of the products as cannot as a consequence of the delay be used as intended by the Parties.
The liquidated damages shall become due at the Customer’s demand in writing but not before delivery has been completed or the Contract is terminated due to delay, cf. the following paragraphs.
If the delay in delivery is such that the Customer is entitled to maximum liquidated damages, cf. above, and if the products are still not delivered, the Customer may by notice in writing to Fiberline Composites terminate the Contract in respect of such part of the products as cannot in consequence of Fiberline Composites failure to deliver be used as intended by the Parties.
If the Customer terminates the Contract, the Customer shall be entitled to compensation for the direct loss the Customer suffers as a result of Fiberline Composites’ delay. The total compensation including the liquidated damages which are payable according to this clause, shall not exceed 10 per cent of that part of the purchase price which is attributable to the part of the products in respect of which the Contract is terminated.
The liquidated damages and termination of the Contract with limited compensation under this clause shall be the only remedies available to the Customer in case of delay on the part of Fiberline Composites. All other claims against Fiberline Composites based on such delay shall be excluded, except where Fiberline Composites has been guilty of intent or gross negligence.
12. Force Majeure
Fiberline Composites is not liable for non-fulfilment of the Contract due to industrial disputes, insufficient labour forces – including labour forces at industrial rates – fires, unforeseen international relations, currency restrictions, war, flood, earthquakes, epidemics, government intervention, or intervention from public authorities, export and/or import prohibition, lack of transportation or other impediments to transport, shortage of raw materials, shortage of other goods and/or fuel restrictions, delayed or missing deliveries from sub-suppliers or any other cause that is beyond the control of Fiberline Composites and which may delay or prevent manufacture and delivery of the products goods sold.
In the event of delivery being temporarily prevented by one or several of the above circumstances, delivery is postponed for a period corresponding to the duration of the prevention plus a reasonable period under the circumstances for normalisation of the situation. Delivery at the time thus postponed is considered punctual in every respect. If the prevention of delivery is expected to last for a period longer than eight (8) weeks, both Fiberline Composites and the Customer will be entitled to terminate the Contract without this termination being considered a breach of contract.
13. Return of products
Return of products sold may take place only with the written acceptance of Fiberline Composites.
14. Notification of defects
Upon receipt of the products Customer shall perform an inspection to the standard normally expected for commercial use. If the products are defective in relation to quality or quantity and Customer intends to rely on the defect, Customer shall give written notice to Fiberline Composites of Customer’s intention immediately and no later than 24 hours after the Customer has discovered or ought to have discovered the defect. Otherwise, the Customer shall forfeit his right to set up a claim against Fiberline Composites because of the defects. In case Fiberline Composites arranges for carriage of the products to the Customer, the Customer shall in addition to the above, immediately upon delivery notify the carrier in writing about any visible defects.
In any event, the Customer will lose his right to rely on a lack of conformity, if the Customer does not give Fiberline Composites notice in writing thereof at the latest within one (1) year after delivery of the products.
Subject to the contracted terms of payment having been observed, and subject to the purchased products having been stored, installed, used, and maintained correctly, Fiberline Composites will, for a period of one (1) year commencing on the day of delivery, undertake at Fiberline Composites’ discretion to supply replacements or repair such products as have become demonstrably unserviceable as a result of manufacturing defects. The defective products are to be returned to Fiberline Composites upon request at Customer’s account and risk. The Customer is not entitled to claim remedies for defects other than the above, and Customer may therefore not terminate the Contract, claim a proportionate reduction of the purchase price or a compensation for any form of loss or expense caused by the defect. Save as stipulated above, Fiberline Composites shall not be liable for defects whether in contract or otherwise. This applies to any loss the defect may cause.
16. Limitation of liability
In addition to what is otherwise stated in these General Terms, Fiberline Composites shall not be liable for operating loss, loss of time, loss of profit, loss of earnings, or any indirect loss or consequential damages.
17. Product liability
Subject to the limitations stated in this clause, Fiberline Composites is liable for product liability pursuant to Danish law. To the extent that Fiberline Composites is liable to pay compensation due to product liability, Fiberline Composites’ liability shall – to the extent permittable under Danish law – be limited to direct loss. In no event shall Fiberline Composites be liable for operational loss, loss of earnings, loss of profits, loss of savings, loss of data, loss of goodwill or any indirect or consequential loss.
Fiberline Composites product liability shall – to the extent permittable under Danish Law – in any event be limited to the sum remaining at any time under Fiberline Composites’ product liability insurance policy.
To the extent that product liability is imposed on Fiberline Composites because of a third-party claim, the Customer shall indemnify Fiberline Composites to the same extent, as Fiberline Composites’ liability is limited towards the Customer in accordance with the above.
Should a third-party file a claim for compensation pursuant to the above against either Fiberline Composites or the Customer, the Party in question shall without delay inform the other Party of same.
In the event that a claim for damage or loss allegedly caused by the products is being brought against Fiberline Composites, the Customer is obliged to letting himself be sued by Fiberline Composites at the same court, despite the agreed venue stated below.
18. Applicable Law and Venue
Any disputes between the Parties which cannot be resolved amicably, are to be settled according to Danish law without giving effect to its provision or rules regarding conflicts of law.
Any dispute arising between the Parties including disputes arising out of the performance of the Contract or the interpretation of the Contract and/or these General Terms shall, if such dispute cannot be solved amicably between the Parties within reasonable time, be settled by the Danish Arbitration Institute in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The place of arbitration shall be Middelfart, Denmark. The language to be used in the arbitral proceedings shall be English. The process shall be subject to strict confidentiality.