GENERAL TERMS OF SALE AND DELIVERY
1.1 These General Terms of Sale and Delivery (“General Terms”) shall apply to all offers, order confirmations, sales and deliveries of products (”Prod-ucts”) from Sun & Safe ApS, a company registered in Denmark under the Danish Business Registration no. 3752 8455 (CVR) (“Sun & Safe”) to any customer (”Purchaser”), unless otherwise agreed in writing.
1.2 Should the Purchaser in his offer, in his order or in any other way stipu-late provisions which conflict with these General Terms, the General Terms shall take precedence, even in case Sun & Safe fails to object to such conflicting provisions.
2. Quotations and conclusion of contracts
2.1 Information in Sun & Safe’s catalogues, brochures, circulars, advertise-ments, photographic material, price lists, etc., specifying quality, dimen-sions and weight are for reference only and are not binding.
2.2 Sun & Safe shall not be deemed to have accepted Purchaser’s purchase order, unless Purchaser has received a written order confirmation from Sun & Safe containing an acceptance of Purchaser’s purchase order or Sun & Safe has received written, timely, coherent and unconditional ac-ceptance from Purchaser of Sun & Safe’s quotation (collectively “the Contract”).
2.3 Sun & Safe shall not be bound by its offer if Purchaser’s acceptance de-viates from such offer.
3. Prices, price change and expenses
3.1 Unless otherwise agreed in writing, all prices quoted by Sun & Safe are exclusive of VAT, taxes, customs or duties, and packaging.
3.2 Sun & Safe reserves the right to alter the prices in case of changes of more than three (3) % in production costs, wages, raw materials, sub-supplies, etc. In case of changes in VAT, duties, taxes and rates of ex-change, Sun & Safe is entitled to change the prices with effect from the time at which such changes become effective.
3.3 All expenses related to Purchaser’s alteration and cancellation of ac-cepted orders and Purchaser’s insufficient order information are borne by Purchaser. Alterations and cancellation of orders requested by Pur-chaser must be confirmed by Sun & Safe in writing in order to be binding upon Sun & Safe.
4. Retention of title
4.1 The following has been agreed with respect to supplies to the Purchaser
domiciled in other countries than Germany:
4.1.1 The title to the Products sold remains with Sun & Safe until the purchase price including any interest and any other sum due is paid in full to Sun & Safe. Purchaser shall handle and store the Products delivered to enable them to be identified as the property of Sun & Safe. Sun & Safe retains title to the Product until all outstanding amounts have been paid, in par-ticular any specific unpaid balances which are owed to the Sun & Safe as part of the business relationship with the Purchaser. Sun & Safe is entitled to insure for the Purchaser’s account the Product against theft, damage, fire, water damage and other damage unless the Purchaser has verifiably taken out such insurance. 4.1.2 If the Purchaser breaches the Contract, in particular in the event of pay-ment default, Sun & Safe is entitled, after the service of written notice, to repossess the Product. This does not constitute cancellation of the Contract. The Purchaser is obliged to inform Sun & Safe without delay of any matters relating to the retention of title, in particular measures re-garding distraint on property or actual interference with the retention of title. 4.2.1 Any Product supplied remains Sun & Safe’s property until it has been
4.2 The following has been agreed with respect to supplies to the Purchaser domiciled in Germany:
4.2.2 Sun & Safe’s retains title to the Products until complete payment of all secured claims including any balances from a current account relation-ship with the Purchaser. The Products as well as all goods replacing the Products which are subject to the retention of title pursuant to this clause, are referred to in the following as „Products subject to retention of title“. 4.2.3 The Purchaser may process and sell the Products subject to retention of title in the course of normal business as long as the Purchaser is not in delay. Pledges or the creation of security interests in regard to the Prod-ucts subject to the retention of title are not admissible. 4.2.4 Processing or modifying the Products subject to retention of title shall always be accomplished on behalf of Sun & Safe’s as producer within the meaning of § 950 BGB (German Civil Code). An obligation on the side of Sun & Safe, however, shall not be created thereby. In the event that the Products subject to retention of title are processed, modified, connected to or mixed with other goods, which do not belong to Sun & Safe, it is hereby agreed that Sun & Safe shall acquire co-ownership of the new goods based on the relation of the value of the Products subject to re-tention of title (invoice value including VAT) to the goods processed, modified, connected or mixed at the time of the processing, modification, connection or mixture. 4.2.5 The Purchaser shall deposit and keep properly insured the Products sub-ject to retention of title on behalf of Sun & Safe and without considera-tion.
4.2.6 For security purposes, the Purchaser hereby transfers all his claims (in-cluding all balances from the current account, ownership and co-owner-ship) which result from the sale, processing, modification, connection or mixture of the Products or from any other legal basis (insurance or tort law) with regard to the Products subject to retention of title to Sun & Safe. Sun & Safe accepts the transfer. Sun & Safe authorizes the Pur-chaser to collect the transferred claims in his own name on behalf of Sun & Safe. This direct debit authorization, however, may be revoked if the Purchaser does not properly fulfil his payment obligations.
4.2.7 In the event of pledges, seizure or other disposals or interventions con-cerning the Products subject to retention of title by third parties, the Purchaser is obliged to inform the third party of the property of Sun &
Safe and to notify Sun & Safe thereof without delay. All costs and dam-ages caused thereby shall be borne by the Purchaser.
4.2.8 Upon demand of the Purchaser, Sun & Safe is obliged to release his granted securities to the extent as their realizable value is exceeding the open claims to be secured by more than 20 %.
4.2.9 If the Purchaser does not comply with his duties provided by these Gen-eral Terms, Sun & Safe may withdraw from the Contract and may claim the Products subject to retention of title to be returned. In particular, a delay in payment shall be regarded as non-compliance by the Purchaser.
4.2.10 The provisions in this section 4.2 are governed by the laws of the Federal Republic of Germany excluding its choice of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG).
5.1 Delivery clauses agreed between Sun & Safe and the Purchaser shall be interpreted in accordance with Incoterms 2020. Unless otherwise agreed in writing, all deliveries shall be made according to the “DAP” delivery clause at Purchaser’s place in accordance with Incoterms 2020. Part de-livery of Products is permitted unless otherwise agreed in writing. In case Purchaser does not take delivery of the Products at the agreed time for delivery, Sun & Safe may invoice Purchaser a handling fee of no less than EUR 1,000 exclusive of VAT.
6.1 Unless otherwise agreed in writing, Sun & Safe is entitled to issue an invoice of 75 % of the total purchase price by the time of Sun & Safe’s issuing of a written order confirmation, and 25 % of the total purchase price by the time of delivery.
6.2 Unless otherwise agreed in writing, payment of Sun & Safe’s invoices must be made within seven (7) days from the invoice date.
6.3 If Purchaser exceeds the time for payment, Sun & Safe may charge de-fault interest on the account receivable with 2 % per month entered into, and Sun & Safe may opt to sell the Products at the Purchaser’s expense
after notifying Purchaser, or store the Products at Purchaser’s risk and expense. The interest will be due and payable immediately, without any further notice being required. All costs related to collecting the amounts invoiced (including any out of court collection cots) will be paid by the Purchaser.
6.4 The Purchaser is not entitled to detain or set-off any amount against any outstanding amount due to Sun & Safe.
6.5 If the Purchaser does not pay the invoice in due time, Sun & Safe is not obliged to make any further deliveries, even though further Contracts has been concluded with the Purchaser.
7. Time of delivery
7.1 Any time of delivery stated by Sun & Safe is not binding on Sun & Safe, as the stated time of delivery has only been estimated to the best of Sun & Safe’s judgment and is subject to the condition that the Purchaser has duly complied with all necessary or agreed formalities or terms. Subse-quent changes or addenda to the Contract annul the earlier stated time of delivery and a new non-binding time of delivery will apply. Sun & Safe’s delivery within two (2) weeks of the stated time of delivery by Sun & Safe, shall always be regarded as delivery on time.
7.2 Sun & Safe reserves the right to deliver the Products by instalments.
8.1 In the event that Sun & Safe has not made delivery within two (2) weeks after the stated time of delivery by Sun & Safe, cf. clause 7.1, the Pur-chaser is entitled to demand delivery by written notice to Sun & Safe and specify a final time of delivery of minimum three (3) weeks, thereby stating that the Purchaser intends to terminate the Contract if delivery does not take place within the time stipulated.
8.2 If delivery has not taken place within the time stipulated by the Pur-chaser under clause 8.1, the Purchaser is entitled to terminate the Con-tract by written notice to Sun & Safe with respect to that part of the Products which is delayed, however, not with respect to already deliv-ered Products.
8.3 Except for the right of termination mentioned in clause 8.1, the Pur-chaser has no other remedies for breach of contract and is e.g. not en-titled to set up any claim for compensation of any kind, including oper-ational loss, loss of earnings, loss of profits, loss of savings, loss of data, loss of goodwill or any indirect or consequential loss, on account of the delay.
8.4 The stated time of delivery by Sun & Safe will be postponed in case of events which are beyond the control of Sun & Safe and which could not be foreseen at the time of formation of the Contract (“Force Majeure”) as defined in clause 11.
9. Notification of claims
9.1 When the Products have been delivered, the Purchaser must make such an examination as required by proper trade usage. If the Products are defective in relation to quality or quantity, the Purchaser shall notify Sun & Safe in writing immediately or in case of the defect not being apparent within two (2) days after the Purchaser has discovered or ought to have discovered the defect. Otherwise, the Purchaser shall forfeit his right to set up a claim against Sun & Safe because of defects.
9.2 In any event, the Purchaser will lose its right to rely on defects of the Products if the Purchaser does not give Sun & Safe notice thereof at the latest within a period of twelve (12) months after the Products were delivered to Purchaser.
9.3 If notice of a defect is given too late, but Sun & Safe nevertheless enters into discussions of points of fact with the Purchaser on account of the notice of the defect, Sun & Safe will do so without waiving its right to later allege that notice of the defect was given too late.
10.1 If defects are ascertained and due notice of such defects is given to Sun & Safe, Sun & Safe is entitled and obliged at its own discretion to either make a replacement delivery, to remedy the defect or to grant the Buyer a proportional reduction of the agreed purchase price, after which the defect has been finally remedied.
10.2 If Sun & Safe does not, within 20 business days of the clarification of the notice of defect matter, perform its obligations under clause 10.1, the Purchaser is entitled to notify Sun & Safe of a final deadline of minimum three (3) weeks for remedying the defect. If Sun & Safe’s obligation has not been fulfilled within the time stipulated, the Purchaser is entitled to terminate the Contract with respect to the defective Product if the defect is considered material or demand a proportionate reduction of the pur-chase price of the defective Product if the defect is considered immate-rial.
10.3 Except as stated above under clause 10.2, Sun & Safe is not liable for any defects, and the Purchaser is thus not entitled to claim other reme-dies for breach of contract than as stated above. Sun & Safe is in no circumstances, irrespective of gross negligence, 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.
11. Force Majeure
11.1 Sun & Safe is not liable for any non-fulfilment caused by force majeure,
including but not limited to war, riots, intervention by governments or
local authorities, strikes, lock-outs, export or import bans, bad weather
conditions, fire, lack of raw material, man power, energy supplies or
breakdown of machinery, epidemics, impediments and disturbances in transport etc., and irrespective whether such impediments affect Sun & Safe or any sub-supplier. In case of force majeure, the time of delivery is postponed for a period corresponding to the duration of the impedi-ment. Each party is however, entitled to terminate the Contract regard-ing the relevant deliveries in writing, if the impediment has lasted or is expected to last more than three (3) months.
12. Limitation of liability
12.1 Sun & Safe’s liability to pay damages shall in all circumstances be limited as described below.
12.2 To the fullest extent permitted by applicable law, Sun & Safe shall not be liable for Purchaser’s or other parties’ operating loss, loss of time, loss of profit, loss of earnings, or any other indirect loss or consequential or indirect damages.
12.3 These General Terms shall only exclude or limit Sun & Safe’s lia-bility to the fullest extent permitted by applicable law.
13. Product Liability
13.1 Subject to the limitations stated in this clause 13, Sun & Safe is liable for product liability damage pursuant to the Danish rules on product lia-bility in force at any time.
13.2 To the extent that Sun & Safe is liable to pay compensation due to product liability, Sun & Safe’s liability shall in any event be limited to direct loss. In no event shall Sun & Safe 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.
13.3 Sun & Safe’s product liability shall in any event be limited to the at all times remaining insurance sum according to Sun & Safe’s product liabil-ity insurance.
13.4 To the extent that product liability is imposed on Sun & Safe because of a third party claim, the Purchaser shall indemnify Sun & Safe to the same extent, as Sun & Safe’s liability is limited towards the Purchaser in ac-cordance with the above.
13.5 Should a third-party file a claim for compensation pursuant to the above against either Sun & Safe or the Purchaser, the party in question shall without delay inform the other party of same.
14. Intellectual Property Rights
14.1 Materials created, designed and/or manufactured by Sun & Safe, i.e. trademarks, tradenames, packaging, art-work, printing, plates, photo-graphs, films, photographs rollers- off-set plates and dies, remain the property of Sun & Safe, irrespective whether the material is invoiced separately to Purchaser, unless otherwise agreed in writing. The Pur-chaser shall treat the information as confidential and is not entitled to disclose, copy and/or pass on the information to third party without the Sun & Safe’s prior written acceptance.
14.2 Sun & Safe shall retain full ownership of all intellectual property rights including but not limited to copyrights, trademarks, designs, patents,
etc. created, designed, acquired and/or otherwise obtained by Sun & Safe. Unless otherwise agreed in writing, Sun & Safe shall not be deemed to have assigned, transferred or otherwise granted any rights to any of such intellectual property rights to the Purchaser or any third party.
14.3 In the event of the Purchaser’s breach of clause 14.1, Sun & Safe is entitled to claim compensation for its loss from the Purchaser. In addi-tion, Sun & Safe is entitled to obtain an injunction, without provision of security, against the Purchaser’s unlawful activities.
15. Partial invalidity
15.1 If one or more of the terms and conditions in these General Terms or any part of a term is deemed invalid, unenforceable, illegal or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall not be affected or diminished thereby.
16. Applicable law
16.1 These General Terms and any subsequent Contract shall be governed by Danish law, with the exception of any conflict of law rules in Danish law.
17.1 Any dispute arising out of or in connection with these General Terms and any subsequent Contract, including any disputes regarding the exist-ence, validity or termination thereof, shall be settled by arbitration ad-ministrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbi-tration and in force at the time when such proceedings are commenced. The place of arbitration shall be Kolding, Denmark. The language to be used in the arbitral proceedings shall be English.
Valid from 11.08.2020 (Version 01)