Appendix for Quotations, Contracts, Frame and Purchase Orders
1.1. Orgalime’s General Conditions for the Supply of Mechanical, Electrical and Electronic Products, version March 2012 (hereafter referred to as Orgalime S 2012) and the below general terms of sale and delivery apply to all agreements concluded between Wind Cluster aps (the “Seller”) and the Buyer on the delivery of goods and services (the “Products”) by the Seller. Deviations there from only apply if agreed upon in writing. Buyer’s Standard terms, National or International Terms for Purchase or Sale are specifically excluded.
1.2 The term “Product” as used herein means all if any of the products, parts and accessories sold and delivered, all software and software documentation licensed to Buyer by the Seller as well as all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by the Seller. The term “Product” as used in Orgalime S 2012 shall likewise be understood as stated above. The term “Buyer” shall refer to the company placing a purchase order to Wind Cluster.
1.3. In case of any contradictions or discrepancies between this Appendix and Orgalime S 2012, this Appendix shall prevail. The terms stated shall apply to all deliveries between Seller and Buyer.
1.4. Should any discrepancies occur between the Buyer’s terms of purchase, if any, and these present terms of sale and delivery, the Seller’s terms of sale and delivery will prevail.
1.5. Quotations made by the Seller will lapse if not accepted within three (3) months from the date of quotation. Prices offered are based on the technical documentation and production layouts known and available at the time of quotation. Any changes thereto or revision changes may lead to a change in price.
2. Ordering, delivery and prices
2.1. All prices stated are for delivery ex works in accordance with current Incoterms inclusive of packaging but exclusive of pallets, drums and frames unless otherwise agreed in writing. However, the Seller undertakes to dispatch the products according to the Buyer’s instructions. In such case, the dispatch is effected on behalf of the Buyer and at the Buyer’s own expense and risk unless otherwise agreed in writing.
2..2. All prices stated are exclusive of VAT and any existing or future public duties and other costs beyond the Seller’s control. The Seller reserves the right to make price adjustments if documented changes in components and raw material prices, pay under collective agreements, taxes and duties on goods, tariff rates, import/export duties, exchange rates or other conditions beyond the Seller’s control increase the price of delivery of the Seller’s Products.
2.3. In case the Buyer do not place any repeat purchase order (PO) of frame orders within maximum six (6) months from the last delivery of the previous PO, there can be a surplus of special dedicated material, such as components or raw material caused by Sellers or Sellers suppliers purchase of minimum quantities of this material. This surplus will be invoiced the Buyer to documented cost price.
2.4. Unless otherwise specifically mutually agreed upon in writing, shall any confirmed frame order issued by the Buyer, be called-off in full and delivered within one (1) year calculated from the day of the first delivery of the frame order. The remaining surplus will hereinafter be delivered and invoiced.
2.5. Any design change in serial deliveries whether firm orders or frame orders shall be communicated in writing as an Engineering Change Order (ECO) and mutually agreed upon.
2.6. Any possible change in time of delivery and volume of the purchase order may change the commercial conditions and may be invoiced as a consequence. Changes to confirmed date of delivery within less than eight (8) weeks, shall specifically be agreed upon in writing.
2.7. The Seller will, by the Buyer’s cancellation of the purchase order partly or in total, invoice the remaining already produced quantity of the cancelled purchase order to the Buyer, inclusive any dedicated remaining stock of raw material or components acc. to the conditions in Article 2.3.
3.1. Unless otherwise specifically mutually agreed upon in writing terms of payment are in advance by bank transfer or by irrevocable Letter of Credit payable at sight upon delivery of shipping documents to bank. Letter of Credit is accepted only if opened to banks indicated by Wind Cluster and if issued at a minimum net amount of Euro 6,000.00.
3.2 Should other payment terms be agreed upon in writing the Seller reserves the right, at his own expense, to take out a credit insurance limited to the expected risk for Buyer. The expected risk is calculated as the sum of the ordered but not delivered goods within the planned period, stock, and work in progress and amounts owed for invoiced but not yet paid deliveries. If it is not possible to obtain such insurance coverage due to the Buyer’s financial conditions, the Buyer must be able to provide an alternative kind of financial security to Seller.
3.3. The Buyer is not entitled to effect a set-off against the Seller’s claim for payment unless such counterclaim has been approved by the Seller in writing or established by court order.
3.4. Until payment is made, the Seller retains the title of the Product delivered where the delivery exceeds an amount of Euro 300.
4. Time of Delivery
4.1. If delivery is delayed due to force majeure or as a consequence of actions or omissions on the part of the Buyer, including, but not limited to, modifications to the Products, the time of delivery will be postponed to the extent considered fair based on the circumstances. This will apply even if the cause of delay should occur after the originally agreed time of delivery.
4.2. Force majeure includes events, which prevent delivery or make delivery unreasonably onerous, and the influence of which on delivery could not be foreseen at the conclusion of the agreement, including, but not limited to, industrial disputes and any other condition, which is beyond the control of the seller, such as fire, war, mobilizing or military call-up to a corresponding extent, requisition, impounding, exchange control regulations, riots and civil disorder, lack in means of transport, general scarcity of goods, restrictions in motive force and defects in or delay of supplies from sub-suppliers, which are owed to the circumstances mentioned.
4.3. Any delay will only entitle the Buyer to damages if the Buyer is able to prove that the delay is attributable to willful neglect on the part of the Seller.
5. Liability for Defects
5.1. All products are warranted for quality and the agreed workmanship standard for 12 months ex. Works.
5.2. If the Product does not correspond to the information provided by the Seller or is not of the usual quality for such service and provided that the Buyer has initiated an investigation in accordance with the provision above, the Seller is obliged to redeliver or remedy the defective Product at its own discretion. The Buyer will not be entitled to demand a reduction in the purchase price or cancel the purchase. It is presupposed that the Product is stored, processed and treated as prescribed. Re-delivery will take place as quickly as possible from the currently supplying production plant.
5.3. It rests with the Buyer to examine the Product delivered immediately after delivery. The Buyer is obliged to immediately notify of defects manifested. If the examination made by the Buyer is not carried out in a thorough or proper way, the Seller will not be liable therefore.
5.4. Notification of defects must take place no later than ten (10) days after the Buyer has or ought to have manifested the defect. Notification must be done in writing with a thorough description of the defect. If such deadline is not met, the Buyer’s right to give notice of the defect will lapse.
5.5. The Seller is only liable for defects caused by gross negligence and cannot be made liable for loss of production, operating loss, loss of profit or any other indirect loss, including postage at the Buyer or any third party.
5.6. Sellers’s liability shall cover only the materials such as the Spare Part or the complete Product originally delivered and assembled by the Seller. If Spare Parts not delivered by the Seller are used in the Products, Seller’s liability for defects shall automatically expire.
5.7. When a defect in a part of the Product has been remedied, the Seller shall be liable for defects in the repaired or replaced part under the same terms and conditions as those applicable to the original Product for remaining warranty period or a period of three (3) months, whichever is longer.
5.8. Seller shall, at its option, either repair or replace the nonconforming portion of the Product or re-perform the nonconforming Services. The liability of Seller for defects as stipulated in Orgalime S 2012 (clauses 23–39) and the terms herein shall always be limited to delivering the remedied or replaced Product or part to the Purchaser at the agreed place of delivery as governed by the terms and conditions of the contract between the Buyer and Seller.
5.9. The costs and expenses related to remedying the defect or testing in other destination than the contractual place of delivery (like the final destination / site of the Product) shall be charged according to valid Wind Cluster Service and Engineering Price List. These costs include e.g. installation, commissioning and testing work, travelling, accommodation and daily allowances and time used for preparations, planning, technical support, travelling and other local or remote activities
5.10. The foregoing undertakings are exclusive and in lieu of all other warranties of quality and performance, whether written, oral or implied, and all other warranties including any implied warranties of merchantability or fitness for a particular purpose or usage of trade are hereby disclaimed. The remedies stated in Orgalime S 2012 as amended by this Appendix constitute the Buyer’s exclusive remedies and Seller’s entire liability for any defect or breach of contract.
6. Business and Product Liability
6.1. The Seller is only liable for personal injury or property damage caused by the Products sold if it can be established that the injury or damage was caused by faults or negligence for which the Seller is liable or committed by others for whom the Seller is responsible. Property damage is limited to Euro 134,000 per year.
6.2. In cases of delay, Product damage or defects, the Seller will never be liable for operating loss and loss of profit or other similar, indirect losses, including daily penalties.
6.3. If the Seller is deemed liable to any third party as a consequence of the Buyer’s resale or other use of the Seller’s service, the Buyer must indemnify the Seller to the same extent to which the Seller’s liability is limited under clauses 5 and 6.
6.4. Further, to the maximum extent permitted by law, and notwithstanding anything to the contrary herein, the total aggregate liability of Seller regarding all claims for damages or losses, caused by breach of contract, warranty, guarantee, indemnity, tort (including negligence), strict liability, statutory duty or otherwise, which may arise in connection with the performance or non-performance of Seller under the contract shall be limited to the value of the purchase order.
7. Software Licensing
7.1. Seller owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Buyer. As part of the sale made hereunder, Buyer hereby obtains a limited license to use the Software, subject to the following: (i) the Software may be used only in conjunction with the product specified by Seller; (ii) the Software shall be kept strictly confidential; (iii) the Software shall not be copied, reverse engineered or modified; (iv) Buyer’s right to use the Software shall terminate immediately when the specified product is no longer used by Buyer or when the agreement and/or license, as the case may be, otherwise is terminated e.g. for breach, hereunder; and (v) the rights to use the Software are non-exclusive and non-transferable, except with Seller’s prior written consent.
8. Inventions and Intellectual Property
8.1.All right, title, interest, know-how (including specific, substantial knowledge and experience about methods and processes and products) and intellectual property rights (including patentable and non-patentable inventions, utility models, patents, software registrations, discoveries and improvements, processes, copyright works, product design and the like) relating to the Product shall vest in and be the absolute and exclusive property of Seller.
When the products are to be manufactured by Seller in accordance to the specification provided by the Buyer, the Buyer shall indemnify Seller against any claims, costs, and liabilities or like in connection with infringement of any intellectual property rights of any third party related to Seller’s use of the Buyer’s specification.
8.2. Unless specifically otherwise agreed in writing, manufacturing of the Product is limited exclusively to Seller. Any reverse engineering, copy production or counterfeit production of the Product is strictly prohibited.
8.3. Seller and suppliers of Seller is engaged in continuous R&D, and therefore reserves the right at its own discretion to restructure, modify etc. its products and systems without prior notice.
9. Governing law and jurisdiction
9.1. If agreement cannot be reached through negotiation, any dispute between the parties arising from the agreement or these present terms of sale and delivery, including disputes on the existence or validity of the agreement, must be settled by arbitration by Danish Arbitration in Copenhagen in accordance with Danish Law.
10. Final stipulation
10.1. Should any provision of these Standard Conditions be void or nullified by virtue of applicable law, the Buyer and Seller shall consult each other and agree on a provision that actually is allowed, which will as much as possible approximate the purpose of the original provision.
10.2. These General Terms of Sale and Delivery apply for Wind Cluster aps, Aahavevej 69, DK-8600 Silkeborg, Denmark.