Terms of Sale and Delivery
The following general Terms of Sale and Delivery shall apply to all deliveries of products, installation works and services from BarkerBille and its affiliates, unless otherwise expressly agreed in writing. Thus, BarkerBille shall not be bound by any of the buyer’s terms, even if BarkerBille has not objected to such terms. Moreover, Orgalime S2012 shall apply to the delivery unless installation work is included in which case Orgalime SE01 shall apply.
In case of any discrepancy between these terms of sale and delivery and Orgalime S2012/SE01, these terms of sale and delivery shall prevail. The individual terms stated in the delivery agreement shall always supersede the terms of sale and delivery and Orgalime S2012/SE01.
2. QUOTATIONS AND ORDER CONFIRMATION
Quotations from BarkerBille are not binding, unless otherwise agreed. Any binding quotations shall expire eight weeks after quotation date, unless otherwise specified in the quotation.
Final agreement is not made until the buyer receives BarkerBille’s written order confirmation, and only the content of this confirmation is binding on the parties .
If the order confirmation deviates from the buyer’s order, the buyer shall notify BarkerBille within one week. If the buyer fails to do so, only the order confirmation shall apply.
3. TECHNICAL INFORMATION AND DRAWINGS
Information found on home pages, in catalogues, brochures, advertisements, product information, drawings, illustrations, or in any other material that has not been made for the specific order is only intended as guidance. Information about weight, dimensions, capacity, volume, load capacity, speed and other technical data is only binding when specifically agreed in writing.
Any assistance in form of technical guidance, measuring, calculation of volume based on drawing materials etc. shall only be seen as a service for which BarkerBille is not liable.
Furthermore, BarkerBille shall not be liable for any written information regarding the products made by BarkerBille’s suppliers.
Any drawings, descriptions and other technical documents that before or after the date of the agreement have been handed over to the buyer, shall remain BarkerBille’s property and shall not be used by the buyer for any other purposes than those agreed. Without permission, the material shall not be copied, reproduced, handed over or otherwise communicated to a third party.
If a delivery clause has been agreed, the clause shall be interpreted according to Incoterms. If nothing has been agreed, the delivery term shall be “Ex Works (EXW)” BarkerBille’s production facility in Holsted. Unless otherwise explicitly agreed, the buyer shall bear the risk during transportation regardless of whether this has been arranged by BarkerBille, and the buyer shall pay BarkerBille’s cost of transportation as well.
If, instead of a specific delivery date, a delivery period has been agreed within which the delivery shall take place, this period shall be calculated from the latest of the following dates:
a) The date of the order confirmation
b) Fulfilment of any agreed preconditions
c) The buyer’s payment of the agreed prepayments/security
d) Receipt of the necessary information to begin the preparation of fulfilment of the order
Delivery times are approximate, unless a fixed delivery time has been expressly agreed in the order confirmation.
Regardless of the terms of delivery, the buyer shall handle the unloading of the goods at the delivery site and shall provide all the necessary equipment to carry out the unloading.
The buyer is obligated to inspect the goods upon receipt and make a complaint to the carrier, if there are any defects or deficiencies. In case of visible defects or deficiencies, the complaint shall be made immediately to the carrier by written complaint on the delivery note. The complaint must be justifiable and state the character and extent of the defect or deficiency. In case of non-visible defects or deficiencies, the buyer shall make his complaint in writing to the carrier within seven days after receipt. In any case, BarkerBille shall be notified regarding the complaint.
Unless otherwise agreed in writing, the prices for the deliveries shall be the prices specified by BarkerBille at the time of delivery. The prices are in DKK, exclusive of VAT and other taxes, ex works excluding packing, transportation and insurance. BarkerBille shall bear no costs regarding export costs, customs duties, etc.
BarkerBille reserves the right to adjust the agreed price for goods manufactured after the order confirmation has been sent, if any increases in duties, charges or taxes etc. of which BarkerBille was not aware of at the time of sending the order confirmation should take place.
Payment shall be net cash on receipt of invoice, unless otherwise specified in the order confirmation. If payment on delivery has been agreed, the payment shall be made on the agreed delivery date even if delivery is postponed due to the buyer’s situation.
BarkerBille is entitled to charge interest of 2 % for every month or part of a month from due date.
7. RETENTION OF TITLE
BarkerBille shall retain title to the goods until the full purchase price including delivery and installation costs and interest has been paid. The Buyer shall ensure that the goods are insured for BarkerBille’s benefit until the full purchase price has been paid.
8. PASSING OF RISK
The risk of the goods shall pass to the buyer upon delivery, as defined in Incoterms 2010 in accordance with the agreed delivery clause.
If delivery is postponed due to the buyer’s situation, the risk shall pass to the buyer upon the agreed delivery date.
9. THE SELLER’S DELAY
If BarkerBille is not able to deliver within the time specified, cf. Clause 4, or if a delay is likely to occur, the buyer shall be informed in writing without undue delay stating the reason for delay and when delivery can be expected.
If the delay is due to force majeure, cf. Clause 17, delay of sub-suppliers, missing payment of the purchase price or instalments, or any other obstructions for which the buyer is responsible, the time of delivery shall be postponed with as long as appropriate all circumstances considered.
If BarkerBille is responsible for the delay, the compensation for the buyer’s proven loss shall never exceed 0.5 % of the purchase price for every week the goods are delayed, calculated based on the part of the purchase price which is related to the delayed part of the delivery. The compensation shall never exceed 7.5 % of the relevant part of the purchase price. Furthermore, BarkerBille shall not be liable for any loss or penalties, which are stipulated in Orgalime S2012/SE01 or elsewhere.
If the maximum amount of compensation is reached, the buyer can, by notifying BarkerBille in writing, impose a time limit for delivery of not less than 14 days. If this time limit is exceeded, the buyer can cancel the delivery as to the part of delivery that has not yet been delivered. If the buyer cancels the delivery, he shall not be able to claim compensation for the delay but will have the right to claim compensation for his proven losses related to the delay. The compensation is limited to 15 % of the part of the purchase price, which is related to the cancelled part of the delivery. BarkerBille is not liable for any indirect losses.
10. THE BUYER’S DELAY
If the buyer cannot take delivery on the agreed delivery date, or if a delay on his part is likely to occur, the buyer shall inform BarkerBille in writing without undue delay stating the reason for delay and when taking delivery is expected to be possible.
BarkerBille shall store the goods properly at the buyer’s expense. If requested by the buyer, BarkerBille shall insure the goods at buyer’s expense.
BarkerBille can request the buyer to accept the delivery within a reasonable time. If this request is not met, if not due to force majeure, BarkerBille can demand default interests, cf. Clause 6, and after giving 1 month’s notice in writing terminate the agreement, unless the delay is due to force majeure. If the agreement is terminated, BarkerBille is entitled to claim compensation for its losses. The compensation is limited to the purchase price plus storage costs.
11. THE SELLER’S LIABILITY FOR DEFECTS
BarkerBille shall remedy any defects in the goods caused by defects in the construction, material or production. BarkerBille shall repair or replace the defective part. BarkerBille’s liability for defects becomes time barred after 1 year from delivery. If a taking-over test has been agreed, the period shall be calculated from the conduct of a satisfying test, unless the buyer prior to the test has started using the goods, in which case the period shall be calculated from such use. If the goods are used more intensively than agreed or assumed, the period shall be reduced proportionately.
BarkerBille’s liability does not include ordinary replacement of ordinary wear and tear, defects caused by material provided by the buyer, or by constructions prescribed or specified by him, or defects caused by wrong operation, inadequate maintenance or incorrect installation or reparation performed by the buyer.
BarkerBille decides where the repair shall take place. Dismounting and mounting of the defective part shall be performed by the buyer, unless this requires BarkerBille’s expertise. BarkerBille shall bear all costs and risks regarding the transportation of the defective part between BarkerBille and the original delivery site of the defective part. The Buyer shall comply with BarkerBille’s instructions regarding the mode of transportation. If the defective part is situated elsewhere or under other circumstances than the original delivery site, the buyer shall pay any additional costs resulting therefrom.
The replaced parts shall be BarkerBille’s property. The period of liability shall be extended with the amount of time that the goods are not in use as a consequence of the repair. Liability for the replaced parts follows the liability for the rest of the goods in question.
After discovering a defect, the buyer shall without delay notify BarkerBille in writing. If such notice is given too late, the buyer will not have the right to any corrective action.
If BarkerBille does not repair or replace the defect within a reasonable time, the buyer can impose a time limit by written notification. If this time limit is exceeded, the buyer can choose between having the defective parts repaired at BarkerBille’s cost and risk, or demand a proportionate reduction in the purchase price, though limited to 15 % of the agreed total price for the defective part.
BarkerBille is not liable for any defects other than those stated above, and is therefore not liable to the buyer for any operational loss, loss of profits, or other indirect or consequential losses whatsoever.
If a defect is caused by or arisen in parts supplied by one of BarkerBille’s sub-suppliers or works executed by BarkerBille’s subcontractors, BarkerBille is not liable to a larger extend than it is possible for BarkerBille to have such loss indemnified by the supplier or subcontractor in question.
12. PRODUCT LIABILITY
BarkerBille shall not be liable for damages to real or personal property caused by the goods when the goods are in the buyer’s possession. Nor for any damages to products manufactured by the buyer or products of which these are a part, or for any damages to real or personal property caused by these products due to the goods, except in case of gross negligence.
Notwithstanding the above, BarkerBille is under no circumstances liable for any operational loss, loss of profits, or any indirect or consequential losses, and the liability for damages to person or property is limited to DKK 10,000,000.
If a third party makes any such claim against BarkerBille, the buyer shall indemnify BarkerBille against any losses. The parties shall without delay notify each other if a third party makes a claim, and the parties shall accept to be summoned by a third party both at the court of law or court of arbitration which handles the claim for compensation which has been made against one of them based on a damage which the third party claims to have been caused by BarkerBille’s goods.
13. ANTICIPATORY BREACH
If it is clear from the circumstances that the buyer is unable to perform his obligations according to the agreement, BarkerBille shall have the right to terminate the agreement by written notification indicating the reason. If so, the buyer is liable for damages according to the general rules of Danish law.
14. INDIRECT LOSSES
As indicated e.g. in the clauses regarding delay, defects and product liability, BarkerBille is under no circumstances liable for the buyer’s indirect losses as a result of non-fulfilment of the agreement, no matter if it is loss of production, contribution margin, clients, orders or any other loss.
If BarkerBille delivers a good with associated software, the buyer acquires a non-exclusive right of use to the software, limited to the purpose stated in the product specification. Apart from that, the buyer acquires no rights to the software. The buyer has no access to the source code of the software, unless this has been agreed upon explicitly with the holder of right in question. If the right of use is conditioned by payment of a periodic license fee, the buyer shall be liable to pay such fee.
BarkerBille reserves the right to make changes to its products without previous notice, provided that this can take place without making essential changes to the agreed technical specifications, and without making essential changes to the form, function or durability of the products.
17. FORCE MAJEURE
BarkerBille is entitled to cancel orders or postpone any agreed delivery and is furthermore not liable for any missing, defective or delayed good which in whole or in part is due to circumstances beyond BarkerBille’s reasonable control, such as rebellion, riot, war, terrorism, explosion, fire, natural disasters, government regulations, prohibitions and injunctions, strike, lockout, slow-down, lack of means of transport, shortages, illness, resignation of key personnel, or delay of or defects in deliveries from sub-suppliers or subcontractors, accidents in production or testing, computer viruses or lack of energy supply. In such cases, all of the buyer’s rights shall be suspended or terminated. Consequently, in case of annulment or postponed execution, the buyer shall not be entitled to claim compensation or make any other claims against BarkerBille.
18. APPLICABLE LAW AND ARBITRATION
Any disputes arising from or relating to the agreement, including disputes regarding the existence and validity of the agreement, the interpretation and application of these terms, and the accordance between the delivery and the agreement shall be settled under Danish law by arbitration according to rules of the Danish Arbitration Institute in Copenhagen as in force from time to time. Disputes in which the amount in dispute is less than DKK 1,000,000 shall be settled by the Danish Arbitration Institute in Copenhagen by simplified arbitration according to rules of this Institute as in force from time to time.