General purchasing conditions
These General Purchasing Conditions shall apply to all purchases of products or services (hereinafter referred to as “deliverables”) by MC emballage a/s (hereinafter referred to as the “buyer”) and shall prevail over any seller's general conditions for sale or delivery unless specifically agreed in writing.
1.1 The seller shall prepare an offer without costs for the buyer. Any deviation from the enquiry documents must be specified.
1.2 The buyer shall be entitled to accept or reject any offer.
2.1 Orders may be both written and oral. Orders given orally will be confirmed in writing if so requested by the seller. Only written orders or orders confirmed in writing shall be binding on the buyer.
3. Order confirmation
3.1 Orders shall be confirmed in writing by fax or e-mail by the seller within 2 days of receipt of the order, provided delivery is not effected immediately.
3.2 A contract for the purchase of deliverables shall be deemed concluded between the seller and the buyer upon the seller's receipt of the buyer's order. However, the buyer reserves the right to cancel orders until receipt of the order confirmation.
3.3 Seller shall forward a new order confirmation by fax or e-mail in the event that an order is changed by mutual agreement between the seller and the buyer.
4. Terms of payment
4.1 The purchase price of the deliverables is fixed and shall not be subject to adjustment. The price includes all taxes, custom duties, port duties, documentation, transportation, insurance, and any other costs and fees relating to the deliverables with the exception of Danish VAT (if applicable).
4.2 Unless otherwise agreed, payment shall be effected 60 days after the end of the month in which delivery took place, however, no earlier than 60 days after a correct invoice has been received by the buyer. All invoices shall state the order number or other reference required by the buyer and shall clearly specify what the amount concerns.
4.3 If advance payment is agreed, the seller shall provide security for such advance payment in the form of a bank guarantee.
4.4 For purchases involving manufacturing, where no other bank guarantee or guarantee arrangement has been agreed, the seller shall furnish an unconditional bank guarantee in the amount of 10% of the total order sum. Such bank guarantee shall be issued by a bank approved by the buyer and shall be valid until the defects notifications period has expired.
4.5 The buyer reserves the right to withhold payment for any and all deliveries that do not comply with the order or these General Purchasing Conditions or for any other reason cannot be approved by the buyer. The buyer is entitled to set off against the amount invoiced by the seller any claim against the seller, including any claim of a company affiliated with the buyer. No interest shall accrue in case the buyer withholds payment, whatever the cause.
5. Delivery and delay
5.1 The deliverables shall be properly packaged and marked and shall be delivered at the agreed place and at the agreed time.
5.2 Unless otherwise agreed, the term of delivery is DDP (Incoterms 2000) at the buyer's storehouse as specified in the order. Packing and delivery costs shall be deemed included in the contract sum. The seller shall notify the buyer of the time of shipping so that preparations for receiving the goods can be made.
5.3 If the parties agree in writing that the buyer shall arrange for carriage, the seller shall notify the buyer of the measurements and weight of the goods and the time and place of collection well in advance of completion.
5.4 If the seller reasonably determines that he will not be able to deliver the deliverables at the agreed time, he shall forthwith notify the buyer thereof in writing by fax or e-mail, stating the reason for the delay, the measures he intends to implement to reduce the delay and the time at which delivery may be expected.
5.5 Any delay by the seller shall be deemed a fundamental breach, entitling the buyer to cancel the order, in part or in full, if the alternative time of delivery is not acceptable to the buyer.
5.6 In the event of a delay, the buyer is entitled to liquidated damages as from the agreed date of delivery. The liquidated damages shall amount to 1.0% of the total contract sum for each week or part thereof in which the delay persists, subject to a maximum of 10% of the total contract sum. The total contract sum means the sum of the amounts in the main order and all of any additional orders under the same order number.
5.7 If the buyer chooses to cancel the order, the seller shall indemnify the buyer for any difference in the purchase price in the event that replacement products are purchased from alternative sources at a higher price than the purchase price agreed between the seller and the buyer.
5.8 The remedies set out in clauses 5.5 to 5.7 above shall not apply if the seller proves that the delay was due to force majeure.
5.9 In addition to the amounts paid or payable under clause 5.6 the buyer is entitled to claim damages from the seller for any additional direct or indirect loss or expenses by reason of the delay by the seller or anyone to whom he is answerable.
6. Quality assurance and control
6.1 The seller shall have a quality assurance system adapted to the nature of the purchase or approved in accordance with ISO 9000 or any similar standard. The buyer shall be entitled at all times to examine, inspect and measure materials and workmanship, and to check the progress of production and manufacture of the goods or any part thereof at the seller's and/or any subcontractor's facilities to ensure that delivery is made in accordance with the agreed quality system and the order. The seller shall undertake to assist in conducting such inspections. Similarly, the buyer may demand that a test record, certificate and calculations be presented. All documentation such as certificates, drawings, instructions etc. that the seller produces in connection with the deliverables shall be regarded as part of the deliverables.
6.2 If at any time the workmanship should prove to be defective or not satisfactory in any other way, the seller shall immediately notify the buyer of any repairs necessary or required by the buyer. The costs of repair and inspection of the same shall be paid by the seller. Any remedying of defects and/or non-conformity shall be completed prior to the agreed date of delivery.
7.Defects and guarantee
7.1 The seller guarantees the proper construction and good quality of workmanship and materials of the deliverables and that the deliverables are suitable and have the correct properties for the purpose(s) for which they are intended. Furthermore the seller guarantees that the deliverables have been manufactured in accordance with all laws and regulations applicable in the country of manufacture and in the country of destination.
7.2 The deliverables shall meet the specifications of the order, including the agreed performance and utilization figures, and shall be free of defects of any kind. In addition, the technical workmanship shall comply with requirements in respect of design and first-class work that can be expected of modern technology.
7.3 If, prior to delivery, the buyer has conducted inspections in accordance with clause 6 above, or the seller has sent drawings, goods or samples for review, this shall not limit the seller's liability for ensuring that the deliverables are in accordance with the contract, including these General Purchasing Conditions.
7.4 The seller guarantees that the deliverables are free of defects and that they meet the specifications of the order for a period of 24 months following the date of delivery. For replaced or repaired parts, a new 24-month guarantee period shall commence from the date of completion of such replacement or repair. The guarantee period shall be suspended for as long as the deliverables cannot be used by the buyer due to defects, repairs, etc.
7.5 The seller's liability shall not include defects due to deficient storage, deficient maintenance, or incorrect installation on the part of the buyer, or wrong use, alterations or repairs that the buyer has made incorrectly. Finally, the seller's guarantee shall not include normal wear and tear.
7.6 If defects occur during the guarantee period, the seller shall, upon notification from the buyer, remedy such defects immediately at his own cost, unless the buyer has objective reasons to demand postponement, in which case remedy shall take place at a later date. If the defects are substantial, the buyer may demand that the seller redeliver the goods without costs for the buyer.
7.7 If the seller fails to take the necessary steps to bring the deliverables in compliance with the contract, or if waiting for the seller to rectify the defects would lead to considerable inconvenience for the buyer, the buyer may, at his discretion and at the cost and risk of the seller, choose to remedy, repair or replace any non-conforming or defective deliveries himself or have a third party do so.
7.8 If the defects are not completely repaired in accordance with the provisions above, the buyer may demand a proportionate reduction of the purchase price.
7.9 Should the deliverables prove to have substantial defects of a nature such that they cannot be repaired within a reasonable period of time, the buyer shall be entitled to cancel the purchase.
7.10 The buyer is entitled to compensation for any direct or indirect loss he may suffer as a result of defects in the deliverables if the seller or anyone to whom he is answerable has acted negligently.
8. Intellectual property rights
8.1 Application and resale (if any) of the deliverables shall not be in conflict with laws or intellectual property rights of third parties. The seller shall indemnify the buyer for all costs associated with claims raised by any third party for alleged violation of any intellectual property rights, including, without limitation, patents, licences, protection of trade marks and/or designs, copyright and know-how, in relation to the deliverables.
9. Spare parts
9.1 The most important spare parts for the deliverables shall be available during the entire normal lifetime of the deliverables, subject to a maximum of 10 years.
10. Product liability
10.1 In the event that the buyer, according to Danish or foreign law, including case law, becomes subject to any product liability caused by products manufactured or distributed by the seller, the seller shall indemnify the buyer for any damages payable and any loss incurred as a result of such liability, including payment of compensation, interest, legal costs, etc.
10.2 The seller is obliged to maintain product liability insurance with coverage in accordance with good business practice, and on the buyer’s written request submit to the buyer adequate proof thereof.
11.1 If the buyer arranges for alterations of the deliverables, the seller shall be compensated for any additional costs incurred by him in implementing such alterations. If the alterations lead to savings for the seller, such savings shall be deducted from the purchase price.
11.2 If the parties do not agree on the amount of any such compensation as a result of the alterations, the seller shall, nevertheless, implement the alteration without awaiting final resolution.
12. Retention of ownership
12.1 The seller is under no circumstances entitled to make the delivery of goods subject to, or otherwise claim or enforce any right of, retention of ownership.
13.1 The seller shall keep confidential all technical and commercial information, including descriptions, formulas, models, etc., which the seller has received from the buyer in connection with the delivery. No confidential information may be duplicated or used for any other purpose than execution of the delivery. The seller is liable for any loss suffered by the buyer as a result of any violation of these obligations. Upon demand, the seller shall immediately return documents received.
13.2 The seller shall not take photographs on or of the buyer's property.
13.3 The seller shall not send out press releases or advertise or conduct any form of advertising concerning assignments he has been given without special permission from the buyer.
14. Applicable law and legal venue
14.1 These General Purchasing Conditions and any contractual relationship between the seller and the buyer in connection hereto shall be governed by the laws of Denmark, excluding its conflict of law rules and the International Sales of Goods Act (CISG).
14.2 Any dispute or claim arising out of or in connection with these General Purchasing Conditions and any contractual relationship between the seller and the buyer in connection hereto, including any disputes regarding the existence, validity or termination of these General Purchasing Conditions, shall be settled by arbitration arranged by Danish Arbitration in accordance with the rules of arbitration procedure adopted by Danish Arbitration and in force at the time when such proceedings are commenced. However, the buyer is entitled to bring an action against the seller before the ordinary Danish courts, the Court of Aarhus being the court of first instance.