Terms of sale and delivery for Teknos A/S

Valid from 01/11/2023

 

APPLICATION

These general terms and conditions of sale and delivery (General Terms and Conditions) applies to all offers, order confirmations, sales and deliveries of Teknos products and services provided by Teknos in connection therewith ("Products") from Teknos Group companies, including Teknos A/S, CBR no. 85 55 16 12 ("Teknos") to any commercial customer ("Customer"), unless otherwise agreed in writing.

These General Terms and Conditions shall prevail over any conflicting provisions in the Customer's order, acceptance and/or in the Customer's general terms and conditions of purchase, and also in the event Teknos fails to object to such conflicting provisions.

Any deviation from these General Terms and Conditions must be in writing and expressly accepted by Teknos.

ORDER CONFIRMATION

All agreements made between Teknos and the Customer require a written order confirmation from Teknos in order to be legally valid and binding on Teknos. All deliveries by Teknos are delivered according to the order confirmation.

ORDER OF PRECEDENCE

If any contractual documents are found to be in conflict with the other contractual documents, the authoritative priority of the documents shall be as follows, unless otherwise agreed:

• the written agreement, if applicable,
• these terms and conditions,
• Confirmed order.

 

THE PARTIES' OBLIGATIONS

Teknos shall deliver Products to the Customer in accordance with the relevant technical and safety data sheets for the relevant Products, which are published on Teknos's website: https://www.teknos.com/da-DK/soegeresultat/?Tab=Products.

The Customer shall handle, store, transport and use the Products in accordance with the relevant, current technical and safety data sheets and the instructions on packaging labels. Teknos is entitled to update and change technical and safety data sheets on the website at any time.

The Customer shall perform painting work using Products in accordance with the recommendations of the relevant data sheets. The customer must performed documented inspection work in accordance with the applicable standards. The Customer shall comply with all obligations arising from laws or regulations stipulated by the authorities.

Upon delivery, the Customer shall immediately, and before putting the Product into operation, carry out such qualitative and quantitative examinations of the Product as required for proper business use. If the Customer wishes to claim a qualitative or quantitative defect, the Customer shall immediately, and no later than twenty-four (24) hours after the defect is or should have been discovered, notify Teknos in writing, stating the nature of the defect. If the Customer has or should have discovered the defect and the Customer does not complain as stated, the Customer may not subsequently claim the defect. Otherwise, the Customer loses its right to claim any Product defects that should have been discovered during such an inspection. If the Customer discovers that the Products are defective, such Products may not be used without written authorization from Teknos.

PRICES

The price to be paid to Teknos is the price stated in the provided order confirmation, unless otherwise stated or agreed in writing between Teknos and the Customer. The price is exclusive of VAT. VAT is added if applicable.

To the extent that the parties have not agreed otherwise in writing regarding prices, pricing principles and any adjustment of prices, the terms of items 5(3) and 5(4) shall apply. Other changes or adjustments to prices are only valid if they have been agreed in writing between the parties.

Changes to public charges of any kind, including import and export duties, customs duties, taxes, changes to the collection basis or implementation practice of such duties, which occur after Teknos's order confirmation, are of no concern to Teknos and shall be borne by the Customer.

Teknos reserves the right to change its prices to correspond to significant increases in material or other related costs.

PAYMENT

Payment is made according to Teknos' invoice. Unless otherwise agreed in writing between Teknos and the Customer, the terms of payment are as specified in the confirmed order.

In the event of late payment, interest will be charged in accordance with the Interest Act.

Payment shall be made in full without offsetting, counterclaim or deduction and without bank charges by cash transfer to the bank account specified by Teknos on the respective invoice(s).

All costs incurred by Teknos related to the collection of overdue payments, whether made in or out of court and, in general, all costs related to the Customer's breach of these General Terms and Conditions are solely borne by the Customer.

DELIVERY AND DELAYS

The delivery terms are defined according to INCOTERMS 2020. Unless otherwise agreed in writing, the delivery clause CPT is the Customer's address. CPT delivery is either included in the cost of goods sold or invoiced as a separate line.

Teknos endeavors to comply with the delivery date stated on the order confirmation, which is for guidance purposes only.

The written notification must also explain the reason for the delay and a new delivery date.

If the Customer cancels the purchase due to delay, the Customer may only cancel the purchase in respect of the delayed part of the purchased goods. Teknos's liability for damages in the event of delay shall in no instance exceed the invoice price for the delayed part of the delivery, excluding VAT. Teknos shall not assume any further liability for delay or the consequences thereof, nor shall the Customer be entitled to any other remedies for breach of contract.

If delivery is delayed at the Customer's request, or the delay is caused by the Customer's circumstances, the risk for the Products shall pass to the Customer on the date the Products are ready for delivery.

TRANSFER OF OWNERSHIP RIGHTS

The ownership rights shall be transferred to the Customer when Teknos has received full payment for the Products.

If full payment has not been received in due time despite a written request or if, after the due date, an appropriate security has not been provided upon request, Teknos shall be entitled to take back the Products at the Customer's expense.

INTELLECTUAL PROPERTY RIGHTS

The copyright and other intellectual property rights of all Products and documents, including drawings, specifications and instructions supplied to the Customer shall at all times remain the property of Teknos or a third party and neither the documents nor their contents may be used for any purpose other than that for which they were provided without the express written permission of Teknos. The Customer shall not, without Teknos' prior written consent, disclose, transfer, transmit or otherwise make available to any third party in any manner or form any documents or their contents or information which may permit copying or other use of them by a third party.

Unless otherwise agreed, Teknos is entitled to use the Customer's name and brand as a reference.

The customer has the exclusive right to use the Teknos logo or other marketing material in strict compliance with Teknos's written instructions. Teknos is entitled to prohibit the use of the Teknos logo at any time at its own discretion.

WARRANTY AND REQUIREMENTS

Teknos guarantees that the Products fulfil the agreed terms and conditions at the time of delivery, provided that the Products are stored, used and applied in accordance with Teknos's instructions.

Teknos's warranty and liability for defects shall only cover defects in the Product that appear within two years from the time of delivery.

Within the aforementioned period, Teknos has the right and duty to remedy any defects in the delivered Products by repair or replacement at its own discretion, or have the defect remedied by a third party at Teknos's expense.

As long as Teknos fulfils its remediation obligation, the Customer may not make use of other remedies for breach of contract, including cancellation of the purchase, a proportionate reduction or compensation or withhold the purchase price in whole or in part.

If the Customer wishes to submit a complaint about the delivered Products, the Customer must state the name of the Product, batch number and description of the defect in the written notification. The Products suspected to be defective may not be used without written authorization from Teknos.

The Customer loses its right to complain if the Customer has not notified Teknos of the defect and the information stated in item 10(5) within twenty-four (24) hours of the defect being discovered or should have been discovered.

If Teknos so requests, the Customer agrees to store and return any defective Products for Teknos's investigations at the Customer's expense until the defect has been proven.

The Customer is obliged to pay in full and fulfil all other obligations under the Agreement and these General Terms and Conditions, regardless of any claims or complaints.

LIABILITY FOR DAMAGES

Teknos's maximum liability towards the Customer, with the exception of product liability, which is specifically regulated in item 12, shall not exceed the total value of the Products delivered in accordance with the confirmed order, excluding VAT.

Teknos shall not be liable for loss of profit, damage to property other than the Product itself or other indirect or consequential damages.

Teknos assumes no responsibility for the labor involved in the application of the product, as this is highly dependent on the conditions during handling and application. The user of the Products must have sufficient knowledge and skills to use the Products correctly with regard to technical and occupational safety aspects. Teknos shall not be liable for any damage that may occur as a result of misusing the Products or damage to goods other than the Product itself.

Limitations of liability do not apply to damage caused intentionally or through gross negligence.

PRODUCT LIABILITY

Subject to the limitations stipulated in this section, Teknos is liable for product liability damages in accordance with Danish law.

Teknos is not liable for damage in accordance with the rules of product liability, unless the Customer proves that the damage is due to fault or negligence on the part of Teknos.

Under no circumstances will Teknos be liable for operating loss, loss of profit or indirect loss due to product liability damages.

Teknos's total product liability, including interest and costs, shall never exceed the amount of cover remaining at any time under Teknos's product liability insurance.

To the extent that Teknos may be subject to product liability towards third parties, the Customer is obliged to indemnify Teknos to the same extent as Teknos's liability is limited towards the Customer pursuant to item 12.

CONFIDENTIALITY

Each party shall keep confidential all material and information received from the other party, whether or not it is labelled as confidential or which shall be understood as confidential.

In section 13, "Confidential Information" means any information about a Party's products or activities disclosed to the receiving Party or created in the performance of this Agreement. However, the duty of confidentiality does not apply to material or information a) which is generally publicly available, b) which the receiving party has received from a third party without a duty of confidentiality, c) which the receiving party was in possession of before receiving the same from the other party without any duty of confidentiality in connection therewith, d) which the receiving party has independently developed without using material or information received from the other party, e) which the receiving party is required to provide by law or governmental regulation; f) which it is expressly authorized may be disclosed by the disclosing party; or g) which is required to be disclosed by court order and is not protected by any claim of privilege, provided that the receiving party attempts to notify the disclosing party prior to disclosure and that any available governmental or legal protections have been obtained by the receiving party.

The confidentiality obligations under item 13 shall continue to apply after the expiration, cancellation or termination of the Agreement and for a period of three (3) years thereafter.

FORCE MAJEURE

Each party shall be entitled to a reasonable extension of time required to fulfil its obligations if the performance of such obligations is prevented or unreasonably impeded by war, insurrection, export or import bans, natural disasters or unusual weather conditions, governmental orders, interruptions to public transport or energy distribution, fire, breakdown of production machinery, failure or shortage of raw materials from suppliers, labor disputes, power shortages, currency or other restrictions resulting from laws, regulations or orders of any government, governmental agency or entity, or due to unforeseen circumstances beyond the control of either party. The same applies to delays or omissions caused by subcontractors, if the subcontractor's delay or omission is due to similar circumstances.

If the procurement of raw materials, Products or machinery necessary for the manufacture of the Products is prevented or delayed due to any of the obstacles listed in item 14(1) which are beyond Teknos's control and it is not possible for Teknos to make these purchases elsewhere without unreasonable loss of time or expense, Teknos shall be granted the required and sufficient extension of the delivery time.

In the event that one of the Parties is subject to a force majeure situation, the Party concerned shall notify the other Party as soon as possible, stating the date and extent of the force majeure situation and its cause.

Any party whose obligations have been suspended or extended pursuant to the above shall resume the fulfilment of those obligations as soon as possible after the removal of the cause and shall also notify the other party. In the event that the cause continues for more than three (3) months, either party may terminate this Agreement with ten (10) days' written notice without incurring any obligation towards the other party.

CANCELLATION OF AGREEMENT

If either party is in material breach of these General Terms and Conditions, the accepted offer or the confirmed order, and the breach is of material significance to the non-breaching party, the other party shall have the right to terminate the agreement after first giving written notice if the breach has not been remedied within a reasonable time, such period to be at least thirty (30) days.

If one of the parties is in such a financial situation that there are legitimate grounds to doubt the party's ability to fulfil its obligations under the agreement, the other party is entitled to terminate the agreement with immediate effect.

If the Customer has not fulfilled his payment obligations, Teknos is entitled, as an alternative to cancelling the agreement, to suspend deliveries until the due invoice has been paid.

When the agreement is cancelled in accordance with item 15, the non-breaching party shall, subject to the limitations stipulated in these General Terms and Conditions, be entitled to claim damages in accordance with the general rules of Danish law.

COMPLIANCE WITH INTERNATIONAL SANCTIONS, EXPORT CONTROL AND PREVENTION OF MONEY LAUNDERING

The customer agrees to comply with all applicable anti-bribery, anti-money laundering and anti-corruption laws and regulations, as well as UN, EU, UK and US sanctions and export control regulations.

The customer assumes responsibility for and guarantees:

its compliance with all applicable import/export laws, regulations, rules and clauses and any associated embargoes, trade embargoes and sanctions,

that it will complete all required obligations (including obtaining any necessary export licenses or other regulatory approvals) prior to the export, re-export or release of regulated items or supplies (if applicable); and

that the Products purchased from Teknos are not sold to parties subject to UN sanction regimes or similar applicable regional and national regimes.

Teknos shall not be liable for any damages, expenses or costs incurred by the Customer or any other party as a result of Teknos being unable to supply the Products due to export control regulations, sanctions, restrictive actions or embargoes.

JURISDICTION AND APPLICABLE LAW

These General Terms and Conditions and any sales and purchase transactions entered into the parties shall be governed by Danish law, with the exception of Danish legal rules on law rules. The United Nations Convention on Contracts for the International Sale of Goods, created in Vienna on April 11, 1980, shall not apply.

Any dispute that may arise as a result of or in connection with these General Terms and Conditions, the parties' contract or otherwise between Teknos and the Customer, including disputes regarding the existence and validity of the contract, shall be settled by arbitration in Denmark at the Institute of Arbitration in accordance with the rules adopted by the Institute of Arbitration. The arbitration court must take place in Kolding. However, Teknos also has the right to bring proceedings before a competent court in the Customer's domicile.