Terms and conditions of sale and delivery
1.1 The following general terms and conditions of sale and delivery shall apply for all offers, sales and deliveries unless different terms are agreed in writing. Buyer’s terms and conditions stated in his correspondence, orders etc. are not deviations from the present terms and conditions, unless Musholm A/S has accepted them in writing.
1.2 In case of any disagreement between the present terms and conditions and buyer’s terms and conditions, Musholm A/S’ terms and conditions of sale and delivery are valid.
2. Offer and Acceptance
2.1 Agreements between buyer and Musholm A/S shall not be binding on Musholm A/S except in written confirmation, e.g. by a Sales Contract.
2.2 In case of disagreement between the Sales Contract and previously forwarded documents, it is always the Sales Contract, including the present general terms and conditions for sale and delivery, which is valid.
2.3 Offers are always subject to Musholm A/S’ final confirmation and availability in stock. If buyer accepts within the time stated and Musholm A/S has sold the goods to a third party, Musholm A/S must inform buyer hereof without any delay. Hereinafter, Musholm A/S cannot be bound by buyer’s acceptance.
2.4 Buyer’s cancellation or changes of orders require Musholm A/S’ written approval.
3.1 Payment for purchased goods shall be made to Musholm A/S’ account with Spar Nord Bank, (Account No. 9040-4575196964, IBAN DK7490404575196964, valid for all currencies) unless otherwise agreed in writing.
3.2 If payment is not made on time, Musholm A/S is entitled to add interest of 1.5 % for each commenced month from the date of invoice on the amount owed at any time, including previously added interest, costs etc., as monthly interest is added to amounts due including interest.
3.3 Musholm A/S reserves the right to charge DKK 200.00 per reminder.
3.4 If buyer delays a delivery (refuses to take delivery), buyer shall still pay on time, as if the delivery was made as originally agreed.
3.5 Buyer is not entitled to withhold payments, or to make deductions in payments, of outstanding amounts without written approval from Musholm A/S.
3.6 If buyer makes deductions from an amount due despite the terms stated in item 3.5, buyer’s remedies for breach in accordance with the agreement made shall be waived.
3.7 If buyer does not comply with the agreed terms of payment for one or more deliveries, or otherwise does not comply with the Sales Contract, eventually suspending payments, Musholm A/S has the right to stop further deliveries immediately besides its other rights in connection with buyer’s breach of the contract, and Musholm A/S’ total outstanding amount immediately falls due for payment.
4. Reservation of Ownership
4.1 Subject to the limitations of invariable legal rules, Musholm A/S reserves ownership of the goods delivered until Musholm A/S has received payment.
4.2 For German buyers only
All delivered goods – future deliveries included – remain the property of Musholm A/S until buyer has paid for all deliveries from Musholm A/S.
5.1 Musholm A/S reserves the right to invoice buyer the ordered quantity +/- 10 % depending on the delivered quantity, see item 8.
5.2 All prices are exclusive of VAT and other charges.
5.3 If increases of prices for raw material, increases in salary, charges of any kind to the employer, taxes, duties, import and export charges, exchange rate or other conditions beyond the control of Musholm A/S occur between Sales Contract and delivery, Musholm A/S reserves the right to increase its prices accordingly.
6. Indications and Information
6.1 Product information is based on the latest information received from Musholm A/S’ QA/QC service and from Musholm A/S’ suppliers.
7.1 The goods are packed in standard packaging. Special packaging is charged to the buyer, unless Musholm A/S’ Sales Contract states that special packaging is included in the price.
8.1 Musholm A/S always delivers according to existing INCO-Terms, unless otherwise agreed in writing.
8.2 Musholm A/S reserves the right to deliver +/-10 % of the ordered quantity.
8.3 Times of delivery are always approximate indications and are without obligation unless otherwise agreed in writing.
9.1 If Musholm A/S does not deliver within the agreed time of delivery, or within a reasonable time thereafter, without the existence of a force majeure situation, see item 13, the buyer is entitled to forward a written demand of delivery to Musholm A/S and to fix a final delay of minimum 5 working days to be calculated from the date on which buyer demands his rights. If delivery has not taken place within the requested time, buyer is entitled to cancel the agreement, if delivery has not taken place after another 5 working days from the date on which buyer demanded his rights.
9.2 Besides the above-mentioned rights of cancellation, the buyer has no remedies for delay and is not entitled to claim damages of any kind. Furthermore, the buyer is not entitled to cancel former or later orders in case of delay of one delivery.
9.3 Musholm A/S is obliged to notify buyer of any changes in the times of delivery without delay.
10. Specifically purchased Raw Material
10.1 Buyer is obliged to buy all specifically purchased raw material at cost price plus expenses to administration, if any rent of warehouse and transport in case of termination of the co-operation between buyer and Musholm A/S.
11. Products manufactured according to Buyers Specifications
11.1 Musholm A/S is entitled to deliver and to invoice the ordered quantity +/-10 % in connection with all products manufactured according to buyer’s specifications.
12. Defects and Claims
12.1 Buyer is obliged to examine the goods immediately upon receipt according to good commercial practice and inform Musholm A/S without delay of any visible defects.
12.2 If buyer has discovered, or ought to have had discovered, any defects in the delivered goods and omits to inform Musholm A/S as stated, buyer is not entitled to make a claim.
12.3 If the defects have occurred during transportation and are discovered upon receipt the buyer is obliged to inform the transporters hereof and to assure that the driver notes and signs for the defects on the transport documents.
12.4 If buyer notifies Musholm A/S too late according to item 12.2, and Musholm A/S enters into a discussion with the buyer about the claim, Musholm A/S does not thereby waive the right to claim subsequently that the claim was received too late.
12.5 The buyer is obliged to store and to take the necessary care of a defective delivery and give Musholm A/S the opportunity to make an inspection.
12.6 Where goods delivered are defective and claims in this respect can be made against Musholm A/S, Musholm A/S can choose to replace delivery or to remedy the defect or grant buyer a pro rata reduction in the purchase price. Such action by Musholm A/S shall be accepted as full and final satisfaction of any claim relating to the defect.
13. Musholm A/S’ Liability – Force majeure
13.1 In circumstances beyond Musholm A/S’ direct control, Musholm A/S is not responsible for any non-fulfilment of its obligations (such circumstances include but are not limited to strikes, blockades, lock-outs, late or incorrect, or increases in prices of deliveries from Musholm A/S’ suppliers, hindered supply / delivery of raw material and deliveries of the required quality, fire, environmental conditions, lack of transportation means or accidents, restrictions concerning import / export and production problems or stops and the like), suitable to delay or prevent production or delivery of the goods or making the fulfilment more burdensome for Musholm A/S than expected.
13.2 If a delivery on time is prevented momentarily for a reason offeree majeure mentioned in item 13.1, the obligation of delivery is suspended during the period of the prevention and the postponed time of delivery is then considered to be on time in every respect, for which reason buyer is not entitled to cancel the contract as long as such a situation is at hand.
13.3 If the force majeure situation lasts, or is expected by Musholm A/S to last more than 30 working days, both Musholm A/S and the buyer are entitled to terminate the contract without such being considered as breach of contract. Buyer cannot make any claim against MusholmA/S in such a situation.
13.4 Musholm A/S is obliged to notify buyer in writing without delay if such situations as mentioned in item 13.1 occur.
13.5 The liability of Musholm A/S is limited to the amount stated in the invoice and no additional claims can be made against Musholm A/S exceeding this amount.
14.1 Buyer needs Musholm A/S’ written agreement prior to the return of any purchased goods. Only goods in its original intact packaging are accepted, and the expenses related hereto are on buyer’s own account and risk.
15. Product Liability
15.1 Product liability is subject to Danish Law.
15.2 Musholm A/S is not responsible for buyer’s erroneous storage of the goods, buyer’s faulty or deficient treatment and use of the goods, or any consequences of buyer’s use of the product in test or in other connections.
15.3 Musholm A/S is not responsible for damage on products which buyer produces or on products in which Musholm A/S’ products are used as ingredients.
15.4 Musholm A/S is only responsible to the extend set out by invariable legal rules, for expenses related to transportation, disposal of goods, loss of profits and all other indirect losses.
15.5 Musholm A/S is neither responsible for damage on buildings nor equipment and objects while the goods are in buyer’s possession.
15.6 Buyer is obliged to inform Musholm A/S in writing without delay, if it comes to his knowledge that an accident caused by Musholm A/S’ products has occurred, or that a 3rd party asserts that such an accident has happened, or if there is any danger that such an accident is about to happen.
15.7 Item 15.6 does not exempt buyer from preventing any damage or limit the damage by taking the necessary precautions.
15.8 In cases where both Musholm A/S and the buyer are liable as producers, buyer will bear the final responsibility; see the Danish Act on Product Liability Section 11 (2).
16. Anti-bribery and anti-corruption
16.1 Musholm A/S and the buyer, their officers, directors, employees, agents, subcontractors, and other representatives shall not take any action in conduct of their respective businesses that is in breach of any applicable anti-bribery or anti-corruption laws and regulations.
16.2 Neither Musholm A/S nor the buyer has, to the best of its respective knowledge, offered or solicited bribes, gifts or other illegal benefits or accepted to receive bribes, gifts or other illegal benefits from any of the other’s officers, directors, employees, agents or representatives, in violation of applicable anti-bribery or anti-corruption laws and regulations.
16.3 Both Musholm A/S and the buyer undertake to promptly inform the other in writing, if either of them learns that it has failed to comply with applicable anti-bribery or anti-corruption laws or regulations with regards to any agreement subject to these general terms and/or any Sales Contract.
17.1 The buyer hereby undertakes, represents and warrants to Musholm A/S as continuing obligations, representations and warranties that:
a) the buyer will comply with any and all applicable trade sanctions throughout the duration of any agreement, including any Sales Contract, with Musholm A/S;
b) neither the buyer, nor any of its – direct or indirect – owners, members of its board of directors or executive management, or any business partners or end-users in respect of goods delivered as part of any agreement, including Sales Contract, with Musholm A/S, are listed on any lists of sanctioned entities, as adopted by the competent governments, authorities, or bodies of Denmark, the United Nations, the United States of America, the United Kingdom, the European Union or Japan; and
c) the buyer does not support, is not involved in, and is not in any way associated with or controlled by any such sanctioned entities or persons.
17.2. In the event that any undertaking, representation or warranty set forth in the preceding paragraph is breached or at any point in time proves to be incorrect, including that the buyer has acted contrary to any representation or warranty set forth in said paragraph, Musholm A/S may cancel with immediate effect, in whole or in part, any agreement with the buyer, and/or any Sales Contract.
18. Transfer of Rights and Duties
18.1 Musholm A/S is entitled to transfer all its rights and duties to a 3rd party.
19.1 The Maritime and Commercial Court in Copenhagen as the agreed court of law shall settle any dispute.
19.2 Any dispute arising from the present terms and conditions of sale and delivery shall be settled according to Danish law including the rules of the international purchase law, United Nations’ Convention on Contracts for International Sale of Goods (CISC). However, the aforementioned choice of law does not comprise the Danish private international law.
19.3 Buyer is obliged to accept legal proceedings at the court dealing with claims for damages made by 3rd parties against Musholm A/S in connection with product liability.