GENERAL CONDITIONS FOR SUPPLY OF PRODUCTS AND SERVICES
(hereinafter referred to as the General Conditions)
1) These General Conditions shall apply to all deliveries of products and services (hereinafter referred to as the "Product") from TORA A/S, unless otherwise agreed in writing.
2) These General Conditions shall apply together with any sales and/or supply contract between TORA A/S and the Buyer (hereinafter referred to as the "Contact"). In case of any discrepancy or inconsistency between the Contract and these General Conditions, the Contract shall prevail.
Only information and data included in the Contract and/or the General Conditions are binding on TORA A/S. All information and data contained in product brochures, price lists or any other documents are binding only to the extent that they are by reference expressely incorporated into the Contract.
DRAWINGS AND SPECIFICATIONS
All drawnings and tecnical specification relate to the Product and submitted by TORA A/S shall remain the property of TORA A/S. Such drawnings or technical specification shall only be used for the purpose for which they were provided on submission and may not be copied, transferred or in any other Way Communicated to any third party without the written consent of TORA A/S.
Any trade term agreed in the Contract shall be construed in accordance with INCOTERMS 2000. Unless otherwise agreed in writing, all deliveries from TORA A/S shall be ex works (INCOTERMS 2000). Delivery by instalments by TORA A/S shall be permitted unless otherwise agreed in writing in the Contract.
REGULATIONS AND REQUIREMENTS
Any rules and/or requirements in respect of the Product laid down by any public authority shall be expressly referred to in the Contract in order to be binding in the relationship between TORA A/S and the Buyer. The Buyer bears the risk of any amendments to such rules and/or requirements after the conclusion of the Contract. In the event that such and/or requirements are amended after the conclusion of the Contract, TORA A/S shall at the Buyer, but subject to price adjustments, undertake reasonable endeavours to change the Product accordingly, but nothing herein shall be construed as obligation on TORA A/S to make such change.
TIME OF DELIVERY; DELAY
1) Delivery shall be made no later than the date agreed in the Contract. If no time of delivery is agreed, delivery shall be made on a date deemed reasonable by TORA A/S.
2) In the event that delivery from TORA A/S is delayed and TORA A/S receives notice here of from the Buyer or in the event that TORA A/S anticipates to be unable to deliver the Product on the agreed date of delivery, TORA A/S shall forthwith notify the Buyer the reason for the delay and fixing an additional period of time of reasonable length during which delivery will be made .
3) Any other remedy against TORA A/S based on such delay is excluded, cf. clause 2.
4) If it Buyer anticipates not to be take delivery of the Product at the agreed time of delivery, he shall forthwith notify TORA A/S thereof stating the reason and the time when he vill be able to take delivery.
5) TORA A/S may in connection with refusal by the Buyer to take delivery. In the event of the Buyer failing to take delivery within such period, TORA A/S shall be entitled to rescind the Contract in full or in part. In addition, TORA A/S shall in any case beentitled to liquidated damages equal to 10 percent of the purchase price. In the event that TORA A/S incurs a loss in excess of 10 per cent of the purchase price, the Buyer shall indimnify TORA A/S for such a loss.
6) If the Buyer fails to take delivery at the agreed time of delivery, he shall pay such part of the purchase price as becomes due on delivery as if delevery had take place. TORA A/S shall arrange for the storage of the Product at the risk and expense of the Buyer.
1) Unless otherwise agreed the purchase sum shall be paid on the day of delivery.
2) Notwithstanding the means of payment, payment shall not be deemed to have been effected until the full outstanding amount has been irrevocably credited to the account of TORA A/S.
3) If the Buyer fails to pay on the agreed date, TORA A/S shall be entitled to default interst from the day on which payment was due. The interest rate shall be CIBOR (the Copenhagen Interbank Offered Rate) + 12 per cent per annum. In any case of late payment by the Buyer, TORA A/S may at its discretion suspend performance of its obligations under the Contract until payment in full has been effected. TORA A/S shall without undue delay give notice of the suspension to the Buyer.
4) Any delay in payment by Buyer shall be deemed a material breach entitling TORA A/S to rescind the Contract and to claim damages for the loss incurred.
RESERVATION OF TITLE
All Products shall remain the property of TORA A/S until payment in full has been made. The reservation of title shall not affect the passing of risk
1) Pursuant to Clauses 19 to 25 below, TORA A/S shall remedy any defect or nonconformity resulting from faulty design, materials or workmanship (hereinafter referred to as the "Defect").
2) The Buyer shall give notice to TORA A/S of any Defect immediately after he discovers or ought to have discovered the Defect. The notice shall specify the nature of the Defect and the ID number, delivery note number or barcode number of the packaging.
3) In any case, the Buyer shall give TORA A/S notice of any Defect within 12 months from the date when the Buyer's product, in which the Product is installed, is put into operation, and always within 18 months from the date of delivery of the Product by TORA A/S. If timely notice is not given, the Buyer shall loose his right to rely on any Defect.
4) TORA A/S may at its own discretion choose either to deliver a substitute Product or to repair the defective Product. Any repair or delivery of a substitute Product shall be made at the originally agreed delivery place of the Product. If TORA A/S has not delivered a substitute Product or repaired a defective Product within a reasonable time after having recieved notice of such Defect, the Buyer shall be notice to TORA A/S specify an additional period of time of reasonable length for TORA A/S to deliver a substitute Product or repair the Product.
5) A defective Product, or parts thereof, having been replaced by TORA A/S shall be made available to TORA A/S and shall be its sole property.
6) TORA A/S shall not be liable for any damage arising out of any use of the Product not in accordance with the conditions of operation provided for in the Contract or any other improper use of the Product.
7) TORA A/S excludes liability for any damage caused by lack of or faulty maintenance, incorrect installation or faulty repair by the Buyer or resulting from any modification carried out without the written consent of TORA A/S. TORA A/S shall not be liable for normal wear and tear or deterioration.
8) THE BUYER SHALL HAVE NOT RIGHTS OTHER THANT TOHSE STATED IN CLAUSES 2 TO 7 AND SUCH RIGHTS SHALL BE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN OR ORAL. EXCEPTED ARE SUCH WARRANTIES CONTAINED IN SPECIFICATIONS AGREED UPON AND WARRANTIES REQUIRED BY MANDATORY APPLICABLE LAWS.X PRODUCT LIABILITY.
9) The liability of TORA A/S for death or injury to persons or for damage to real or personal property caused by defects in the Product shall be limited to the liability prescribed by the mandatory rules of EU product liability legislation.
10) TORA A/S shall not be liable for any damage to real or personal property caused by the Product after it has been delivered and whilst is in the possission of the Buyer. TORA A/S shall not be liable for any damage to products manufactured by the Buyer or to products in which the Buyer's products constitute a part. TORA A/S shall not incur any product liability on the basis of Danish case law or jurisprudence.
11) In the event of TORA A/S incurring liability towards any third party for any damage/injury as described in the preceding the Buyer shall indemnify TORA A/S.
12) If a claim in connection with such damage and/or injury as described in the three preceding Clauses is loged by third party against one of the parties, the latter party shall immediately inform the other party thereof in writing. TORA A/S and the Buyer shall be mutually obliged to let themselves be summoned to a court or arbitral tribunal, which shall examine for damages lodged against one of them on the basis of damage allegedly caused by the Product, always provided that such claims are based on the liability prescribed by the mandatory rules of EU product liability legislation.
1) Either party shall be entitled to suspend performance of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: fire, war (whether declared or not), military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, any industrial dispute and any defects or delays in deliveries by subcontractors caused by any such circumstances referred to in this Clause and any other circumstances that are beyond the parties' control and which affect the parties' possibilities to filfil the Contract (referred to as "Force Majeure"). Any cirumstance referred to in this Clause whether occurring prion to or after the conclusion of the Contract shall give a right to suspension only if its effect on the performance of the Contract could not have been foreseen at the time or the conclusion of the Contract.
2) A party claiming to be affected by Force Majeure shall forthwith notify the other party in writing in the intervention and on the cessation of any such circumstance. If Force Majeure prevents the Buyer from fulfilling his obligations, the Buyer shall indemnify TORA A/S for any expenses incurred in securing and protecting the Product and other expenses due to the temporary suspension of the contractual obligations.
3) Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to recind the Contract by notice in writing to the other party if the performance of the Contract has been suspended under Clause 1 for more than six months.
Notwithstanding other provisions in these conditions regarding suspension, each party shall be entitled to suspend the performance of its obligations under the Contract, if it is clear from the circumstances that the other party will not perform its obligations. A party suspending its performance of the Contract shall fortwith notify the other party thereof in writing.
Either party shall keep confidential any information received from the other party and pertaining to the Product or the Contract, always provided that the informations recived is not within the public domain.
OPERATING LOSS ETC.
There shall be no liability for either party towards the other party for any punitive damages, indirect damages, special or consequential damages including, but notlimited to, damages for any consequential losses arising out of loss of production, loss of profit, loss of use, loss of earnings, loss of goodwill or loss of contracts.
APPLICABLE LAW AND DISPUTES
These Conditions and any contractual relationship between TORA A/S and Buyer in connection herewith shall be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), and by the substantive laws of Denmark with regard to issues not governed by CISG. Any dispute or claim arising out of or in connection with these General Conditions and any contractual relationship between TORA A/S and the Buyer in connection herewith shall be settled in accordance with the Rules of Procedure of the Danish institute of Arbitration (Cobenhagen Arbitration) by a sole arbitrator appointed by the institute in accorandance with the said rules. The decision of the arbitrator shall be final and binding upon the parties. The place of arbitration shall be Copenhagen. The language of the arbitration shall be the English language. Notwithstanding the foregoing, TORA A/S shall at its own discretion be entitled to require any such dispute to be setted before either the Maritime and Commercial Court of Copenhagen or any national court of a country in which the Buyer maintains a place of business.