Terms of sale

Common terms

Unless otherwise agreed in writing, the following terms and conditions shall apply as an integral part of any agreement made with AAGAARD. AAGAARD shall not be bound by any terms of purchase specified by the purchaser.

Terms of payment

The terms of payment are specified in our order confirmation. However, AAGAARD reserves the right to amend the terms of payment and demand security for payment in the event that AAGAARD obtains any information to indicate that the purchaser's solvency has diminished. Furthermore, any delays in the payments of previous deliveries shall entitle AAGAARD to withhold any pending and future deliveries and shall release AAGAARD from any other contractual commitment. Counterclaims, e.g. claims arising from complaints about deliveries, shall not entitle the purchaser to withhold full or partial payment. Overdue payments shall incur a penalty interest of 1.5% p.a. per month or part thereof. The purchaser shall not be entitled to repayment of any amounts arising from setting off counterclaims.

The delivery shall remain the property of AAGAARD until full payment has been made.

Prices

All AAGAARD's prices are given exclusive of VAT, customs duties and other duties levied on the products. If AAGAARD's costs of executing this agreement should increase due to circumstances beyond AAGAARD's control, including price increases from AAGAARD's suppliers and general price and currency adjustments in the home countries of AAGAARD or the purchaser, AAGAARD shall be entitled to increase the agreed purchase price accordingly.

Unless explicitly agreed, the order total is exclusive of packaging materials.

Scope of the order: Legislation and regulations

The scope of the order shall be as agreed between the parties and detailed in the specifications and descriptions of the order confirmation.

The purchaser shall inform AAGAARD of any relevant legislation or other significant regulations on the mounting, installation, operation, or functionality of the items delivered. If such information is given after the order has been made and accepted, and implies any required additional deliveries, this shall be considered an Engineering Change Note (ECN). AAGAARD shall be entitled to invoice the purchaser for all extra items, including both extra work and extra product shipments, as an additional order.

If and to the extent that AAGAARD as part of the completion of the order submits any production drawings for the purchaser's approval, the purchaser shall be allowed a short period of grace to approve the drawings. Unless the purchaser objects to the drawings within the period of grace allowed by AAGAARD, the drawing basis shall be considered approved, and AAGAARD will start the production. If any modifications are made to the drawing basis after the expiry of the grace period, this shall be considered an ECN, and AAGAARD shall be entitled to invoice this work as an additional order.

AAGAARD shall inform the purchaser in writing without undue delay if AAGAARD is unable to complete the order by the originally agreed or possibly rescheduled time of delivery, or if completion of the order is likely to be delayed. At the same time, AAGAARD shall indicate the cause of such delay and, if possible, the time at which handover is expected to take place.

Mounting

Under the agreement with AAGAARD, the purchaser shall be responsible for ensuring that the mounting work can be performed in conditions which comply with all occupational health and safety legislation and regulations applicable to the mounting location. In addition, the purchaser shall make satisfactory locker room, washing and dining facilities available to the mounting staff, free of charge, at or near the mounting location. Furthermore, the purchaser is responsible for ensuring that board and lodging is available to AAGAARD's staff near the mounting location in accordance with the applicable rate agreements and regulations or as specified in the order confirmation. Unless otherwise agreed, the costs of board and lodging shall be borne by AAGAARD.

If requested by the purchaser, AAGAARD shall in due course – unless a specific time has been agreed – provide the purchaser with drawings or descriptions indicating how the order should be mounted. At the same time, AAGAARD shall provide all information relevant to the construction of any foundations, etc., required for the order.

Any required preparatory work shall be performed by the purchaser in accordance with the above-mentioned drawings and information. Unless the parties have agreed on a specific time for the completion of the purchaser's preparatory work, this should be done in due course to permit foundations, etc., to receive the ordered materials at the agreed time. The purchaser shall notify AAGAARD of the completion of the preparatory work.

The purchaser shall see to it that water and utility supplies such as pressurised air and electrical power, are available to AAGAARD at the mounting location in sufficient amounts or as specified in the order confirmation, prior to commencement of the mounting work. This shall be provided free of charge to AAGAARD, just as payment for the consumption of said water and utility supplies shall be none of AAGAARD's concern.

Furthermore, at the request of and free of charge to AAGAARD, the purchaser shall provide access to lockable or otherwise secured premises or storage facilities at or near the mounting location which are suitable for protecting the materials as well as AAGAARD's tools and equipment against theft and damage. AAGAARD shall notify the purchaser when the materials are ready for mounting in sufficient time to allow the purchaser to take any steps required of him to enable performance of the mounting work.

If the parties have agreed on mounting to be paid according to account rendered, the following items shall be separately debited when invoicing the mounting work:

all travel expenses (including costs of local transportation) of AAGAARD's staff as well as costs related to transportation of the staff's tools and personal items.
agreed allowance for the costs of board and lodging and other accommodation expenses incurred by AAGAARD's staff for each day of absence from the home including all days off and public holidays. Unless otherwise agreed, all per diem and travel allowance payments shall be based on the highest rates agreed in AAGAARD's home country for trips to the country where the mounting work will be performed.
ordinary working hours according to time sheets certified by the purchaser.
overtime work according to time sheets certified by the purchaser.
time spent on the following activities and payable based on the rates for ordinary work time:
1. necessary preparations for the outbound and homebound trips
2. outbound and homebound trips as well as any other trips calculated in accordance with any applicable legislation, regulation or rate agreement in AAGAARD's home country
3. daily transportation between the lodgings and the mounting location if the daily travel time exceeds 30 minutes, or according to the applicable rates agreed in AAGAARD's home country
4. waiting time if performance of the work is prevented by circumstances for which AAGAARD is not liable under the stipulations of these GENERAL TERMS OF SALE AGH 94 or the order confirmation.
any expenses incurred by AAGAARD for making equipment available in accordance with the order confirmation, including payment for the use of AAGAARD's own mounting equipment.
any taxes and duties levied on the invoiced amount and paid by AAGAARD in the country where the mounting is performed.

If the parties have agreed on a fixed price for the mounting work, all the above-mentioned costs shall be included in the payment for mounting. To this shall be added value-added tax or similar duties. If, in such a case, the mounting time is extended for causes attributable to the purchaser or its other suppliers, and if the mounting work is consequently delayed or temporarily suspended, AAGAARD shall be entitled to demand payment for the following in addition to the agreed price of mounting:

waiting time and extra travelling.
costs and extra work caused by the delay, including the work of dismantling and securing and later re-installing the mounting equipment.
extra costs, including payment for keeping AAGAARD's equipment at the mounting location for longer than expected.
extra costs of travel and accommodation for AAGAARD's staff.
e)other costs verifiably incurred by AAGAARD as a result of the rescheduling of the mounting work.

Unless otherwise agreed, the purchaser shall make the required non-skilled labour available to AAGAARD free of charge. AAGAARD shall specify its current requirements for non-skilled labour with a week's notice.

Unless otherwise agreed, the purchaser shall make cranes, lifting tools, scaffolding and other equipment for internal transportation available to AAGAARD at the mounting location, if and to the extent that such equipment is required to perform the mounting work. AAGAARD shall at any time during the work at the mounting location be entitled to inspect the delivery on its own account. This entitlement shall apply until the delivery has been finally handed over.

Complaints and liability for defects

The purchaser shall give AAGAARD written notification of any defect without undue delay after such defect has become evident, and no later than 5 days after reception of the items. The notification shall include a description of the defect's appearance and impact. If there is any reason to believe that the defect could imply a risk of damage, a complaint shall be filed immediately.

If the purchaser fails to notify AAGAARD of a defect within the above time-limits, the purchaser forfeits the right to have the defect remedied. No repairs or modifications may be made to the items or the plant without AAGAARD's written acceptance.

After receiving written notification of a defect, AAGAARD shall remedy the defect without undue delay. The repair shall be made at the mounting location, unless AAGAARD considers it expedient to have the defective component returned in order for AAGAARD to repair or replace it at its own workshop. If the defective component can be removed and replaced without special expertise, AAGAARD's commitment regarding the defective component shall have been met once AAGAARD has supplied a properly repaired or new replacement part to the purchaser.

If the purchaser has given notification as stated above, and it turns out that there is no defect for which AAGAARD is liable, AAGAARD shall be entitled to claim compensation for the work and the cost incurred by AAGAARD as a result of the complaint.

If removal and replacement of a component necessitates intervention on any elements other than the delivered materials or the order, any associated work and costs shall be none of AAGAARD's concern. AAGAARD does not cover the costs of electricians, HVAC installers, builders or any other indirect suppliers or their costs of mounting.

Defective components which are replaced shall be made available to AAGAARD and become AAGAARD's property.

Should AAGAARD fail to meet its commitments within a reasonable time, the purchaser may give AAGAARD written notification of a final deadline for meeting the commitments. If the commitments have not been met within the specified deadline, the purchaser has discretion to either:

have the required repairs performed or have new parts produced at AAGAARD's expense and risk, always provided that this can be accomplished in a sensible and reasonable fashion, cf., however, the below section on limitation of liability, or,
claim a proportional discount, however not exceeding 10% of the price of the materials or of the order total.

Limitation of liability

The purchaser's total claim in damages against AAGAARD can never – regardless of the reason for such claim – exceed 10% of the value of the relevant delivery exc. VAT, and can never exceed an amount of DKK 75,000.00 exc. VAT. If the claim in damages does not relate to a delivery, the purchaser can never raise a claim against AAGAARD in excess of DKK 75,000.00 exc. VAT.

AAGAARD assumes no liability for damage to real property or movables if such damage occurs after the hand-over when the items delivered are in the purchaser's possession. Similarly, AAGAARD assumes no liability for damage to products manufactured by the purchaser or for damage to products which include these. AAGAARD's liability extends only to defects occurring in working conditions corresponding to those specified in the order confirmation and during proper use of the items delivered.

Similarly, AAGAARD does not cover or assume liability for any direct or indirect production and operating loss caused by the supplied plant or its operation, regardless of the reason for any such loss – including stoppages, faults or defects in the supplied plant.

Regardless of the cause, AAGAARD can never assume liability for the purchaser's operating loss, lost profits, loss due to required cover purchases or penalties, or for any other claims raised by a third party or generally for any other indirect and/or incidental loss.

Any intervention on the design of the items delivered which has not been installed and/or maintained in accordance with the applicable instructions or the service and maintenance guidelines laid down by AAGAARD, or if the purchaser has personally remedied or attempted to remedy any faults or defects in the items delivered, shall cause AAGAARD's liability in damages to lapse. AAGAARD's liability does not include coverage for defects occurring in materials provided by the purchaser, or in designs prescribed or specified by the purchaser. Finally, the liability does not include coverage for ordinary wear and tear and deterioration.

Any costs of tests and examinations which may prove necessary in order to determine the cause of a given fault/defect will be invoiced to the purchaser if it can be established with some probability that the cause is attributable to the latter.

AAGAARD assumes no responsibility for ensuring that any products may be used as assumed by the purchaser, or that they otherwise feature certain properties, qualities or applicabilities unless explicitly stated in these terms of sale and delivery, or expressly warranted in writing by AAGAARD.

Product liability

AAGAARD assumes product liability according to the general rules of Danish Law with the below limitations.

Any product liability not regulated by indispensable product liability rules shall be subject to the following limitations:

AAGAARD shall assume liability for personal injury only if it can be proved that the injury was caused by significant errors or neglect on the part of AAGAARD or others working under AAGAARD's responsibility. The same applies to damage to real property and movables.

AAGAARD cannot be held liable for any operating loss or other indirect loss, unless AAGAARD is found to have acted in gross negligence.

Regardless of the type and cause, AAGAARD cannot be held liable for product damage above and beyond what is covered by the product liability insurance taken out by AAGAARD.

If any third party raises a claim, based on rules on product liability, against any party subject to the present terms of sale and delivery, that party shall immediately notify the other party thereof.

If and to the extent that AAGAARD is held liable to any third party under product liability law, the purchaser shall indemnify AAGAARD to the extent to which AAGAARD's liability is limited by the above stipulations.

AAGAARD hereby disclaims to the greatest possible extent any product liability claim based on non-statutory legal practices.

Exemption from liability (Force Majeure)

The following circumstances shall imply an exemption from liability if they prevent or render completion of the order unreasonably burdensome: labour conflicts and any other circumstance beyond the parties' control, such as fire, war, pandemics, mobilisation or unexpected military drafting of a similar scope, requisitioning, public commandeering, currency restrictions, rebellion and riots, import or export restrictions or similar administrative intervention, lacking means of transportation, general shortages of goods, restrictions on power, and defects or delays in deliveries from subsuppliers due to any of the circumstances mentioned in this clause.

Any such circumstances arising before the order was made shall imply an exemption of liability only if their impact on completion of the order could not be determined or reasonably foreseen at the time of making the agreement.

It is the duty of the party who intends to invoke an exemption from liability to notify the other party without undue delay of the occurrence and cessation of such exemption. AAGAARD shall keep the purchaser informed as to when the delayed part of the order can be completed.

If the purchaser is affected by force majeure, he shall cover any costs incurred by AAGAARD in order to secure and protect the order. In addition, the purchaser shall cover AAGAARD's costs related to any staff, subsuppliers and equipment kept on standby with the purchaser's consent in order to resume work on the order.

Disputes and governing law

Any disputes shall be governed by Danish Law and shall be finally settled by the Danish Institute of Arbitration according to the rules applying to the Institute at the time of submitting the request to the Institute.

This, however, shall not preclude AAGAARD from petitioning the competent court within the jurisdiction where the delivery is currently located to ensure that AAGAARD shall take lawful possession of the delivery according to the applicable rules, in order to enforce the retention of title specified in the stipulations.

Any legal issues arising from the order shall be settled in accordance with Danish Law.

Cancellation

Cancellation shall be possible only with our written consent. If the order is for items which are not standard stock items or workshop deliveries, cancellation shall be possible only with AAGAARD's consent, and in that case, AAGAARD shall be entitled to invoice to the purchaser all costs incurred as well as compensation for the loss of margins resulting from the purchaser's request for cancellation.

If the purchaser is unable to complete, by the agreed time, the measures required of him to allow completion of the order, including the commitments specified in the section on MOUNTING, the purchaser shall without undue delay notify AAGAARD in writing. If possible, the purchaser shall at the same time inform AAGAARD of the duration of the delay.

Regardless of any delay on the purchaser's part in meeting the commitments in the first clause, the purchaser shall nevertheless make the agreed payment as if the delay had not occurred.

If the purchaser is delayed or otherwise fails to meet his commitments, including the commitments specified in the sections on MOUNTING, the purchaser shall reimburse AAGAARD for any resulting additional costs incurred by AAGAARD. AAGAARD shall be entitled to a reasonable extension of the time of delivery due to the purchaser's breach of the agreement. If AAGAARD intends to demand such extension, AAGAARD shall inform the purchaser thereof in writing without undue delay.

If the breach is material, AAGAARD shall be entitled to refuse to continue delivery and mounting until the issues have been remedied. AAGAARD reserves the right to take other legal steps under the general stipulations of Danish Law.

Drawings and descriptions

All drawings and technical documents concerning the order or its execution provided by one party to the other before or after the making of the order shall remain the property of the providing party. Any drawings, technical documents or other technical information received may not be used for any purpose other than execution, initiation, operation and maintenance of the order without the consent of the other party.

damage in transport and shipment

Any damage occurred during transportation or unloading shall immediately be reported to the haulage contractor or carrier in the form of a written remark in the consignment note or other shipping document. Unless otherwise agreed in writing, AAGAARD shall not be liable for damage occurring during transportation or unloading. AAGAARD may at any time choose to take out insurance to cover transportation of the delivery and pass on the related costs to the purchaser.

Returning items

Items may be returned only subject to prior written agreement and shall be sent via DDP to the company's warehouse at Smedevænget 14, 9560 Hadsund, Denmark. Returned items will be accepted only when undamaged and unused and must be accompanied by a delivery note referencing the item return agreement. Returned items will be credited against deduction of our costs and as a rule with at least 60% deduction of the purchase total.

Shipment

Items shall generally be delivered EXW according to Incoterms 2010. However, AAGAARD may assist with arranging shipment on the purchaser's behalf, and unless otherwise agreed in writing, the shipment will thus be effected by the carrier chosen by AAGAARD. Returned packaging materials will not be accepted and will be invoiced at the current price. Unless separate written agreement to this effect is made directly with AAGAARD, no insurance will be taken out to cover the shipment.