NEWTEC ENGINEERING A/S AND NEWTEC A/S
GENERAL TERMS OF SALE AND DELIVERY
These general terms shall apply with respect to any contract between Newtec Engineering A/S/Newtec A/S (hereinafter referred to as "Newtec") and its customers (hereinafter referred to as the "Customer"), unless otherwise specifically agreed in writing. These conditions deal only with new machines and new equipment. Used or renovated equipment and machines are not included in the below mentioned conditions. For used or renovated equipment and machines there exist no right to complaint except if other wised agreed in writing. If a machine is modified without acknowledge of Newtec and the consent of Newtec, Newtec shall not be liable and these general terms not apply.
1. CONCLUSION AND SCOPE OF AGREEMENT
1.1. Newtec's offers and quotations are nonbinding and the Customer's acceptance thereof does not constitute a binding contract. An agreement is concluded, when Newtec has issued an invoice or order confirmation and on the conditions stipulated or referred to therein. In the event of any inconsistency or conflict between Newtec's terms of sale and any conditions, which the Customer seeks to impose, Newtec's terms of sale shall prevail.
1.2. Unless to the extend expressly stipulated in the invoice or order confirmation an agreement is exclusive of installation, commissioning and any other services.
1.3. Newtec does not assume liability for any non compliance or inconsistency with the Customer's intended purpose with the product including any non compliance or malfunction with other products.
2. PRICES AND PAYMENT
2.1. All prices are exclusive of freight, insurance, VAT and other duties and taxes. Payment shall be made in cash and prior to delivery. Newtec reserves the right to require prepayment or bank guarantee upon reasonable notification to the Customer.
3. PRODUCT INFORMATION AND EEC-COMPLIANCE
3.1. Technical data, photos, drawings, and other product information contained in Newtec's brochures and other material and information may not — whether received by the Customer prior to or after conclusion of an agreement be relied upon by the Customer, unless to the extend Newtec has specifically referred thereto in its invoice or order confirmation.
3.2. Newtec warrants that the goods comply with all applicable EEC safety and technical standards as in force at the time of delivery. Newtec undertakes no responsibility as to any possible noncompliance with national or other standards and regulations.
4. THE CUSTOMER'S BREACH OF CONTRACT
4.1. The Customer's (1) payments (ii) establishment and fulfilment of any bank guarantee and other securities (iii) timely receipt of the goods and (iv) performance of all other agreed obligations or obligations contemplated by the agreement shall be of essence of the contract.
4.2. In case of the Customer's nonfulifilment of any of the obligations referred to in clause 4.1 Newtec shall — in addition to any other remedies available be entitled to claim interest of 2 % per month or part thereof of the total sales price (ii) cancel the agreement and any other agreements with the Customer partly or entirely (iii) postpone any of Newtec's obligations under the agreement (iv) claim compensation of any direct and indirect loss (v) and require immediate payment of any costs — whether already incurred or not - directly or indirectly resulting from the Customer's nonfulfilment. The rights of Newtec are cumulative.
4.3. The Customer is under no circumstances entitled to retain payments or clear debts by setoff or to postpone or delay any of its obligations towards Newtec. This applies irrespective of whether the Customer's counterclaim arises from the same agreement or otherwise.
5. RETENTION OF TITLE
5.1. All goods supplied by Newtec shall remain the property of Newtec until payment has been made in full of all goods delivered or to be delivered to the Customer. Notwithstanding anything contained in this clause 5, the risk of the goods shall pass to the Customer at the time of delivery.
6. PERFORMANCE TEST
6.1. Prior to delivery the Customer shall at Newtec's request at 8 days notice be obliged to attend a performance test to be executed at Newtec's premises in Denmark. The Customer's travel costs and other costs pertaining thereto shall be at the Customer's own account.
7. DELIVERY AND DELAY
7.1. Delivery is effected "ex works". Incoterms (as in force at the time of delivery) shall apply. In case Newtec is to dispatch the goods Newtec reserves the right to dispatch goods by such route and service as in Newtec's sole discretion appears most practicable. Carriage is in every case subject to conditions of the carriers engaged and Newtec shall be deemed to instruct carriers as the authorized agent of the Customer and to recover from the Customer in full the costs of carriage.
7.2. The agreed time of delivery is based on Newtec's receipt from the Customer of all relevant and necessary information and documentation to allow Newtec to deliver on time. If the Customer delays in providing Newtec with such information and documentation or in fulfilling any other of the Customer's obligations, the time of delivery shall at Newtec's discretion be automatically extended proportionally, and by written notice to the Customer Newtec shall be entitled to cancel the agreement entirely or partly. The same shall apply, if delivery is delayed by circumstances, which under clause 10 are to be considered grounds for relief. Time of delivery shall not be of the essence.
7.3. Newtec is entitled to deliver in installments. Where the goods are to be delivered in installments, each delivery is separately payable in full accordance with these terms.
7.4. Provided that Newtec in writing and without reservations of any kind has stated a fixed time of delivery the Customer shall in case of late delivery by more than 4 weeks be entitled to claim compensation for its direct loss caused by the late delivery, provided and only to the extent, the delay is due to Newtec's negligence. However, the Customer shall under no circumstances be entitled to claim compensation for loss of profit, loss of production or any other consequential loss or damage. The Customer's claim for compensation shall not exceed 5 % of the contract price for the delayed part of the order for every full week of delay, and in no event more than 25 % of the contract price for the delayed part of the order. The Customer must lodge the claim for compensation in writing to Newtec within 8 days after the agreed time of delivery. Otherwise the right to compensation is forfeited.
7.5. If Newtec has indicated that the time of delivery is "estimated", "approximate" or similar the Customer accepts that it is uncertain (i) when delivery can be effected, (ii) whether delivery of the order can be effected at all, (iii) and that Newtec assumes no liability in such events. Accordingly the Customer accepts that the exclusive right or remedy in such cases shall be a right for the Customer to terminate the agreement if a period of 10 weeks after the indicated time of delivery has passed and Newtec at the Customer's written request thereafter has not informed the Customer of a fixed time of delivery within 6 weeks. The Customer shall have no other rights or remedies.
7.6. Newtec shall be responsible for delay exclusively to the extent such responsibility is stipulated in this clause 7. The remedies described in this clause 7 are the exclusive remedies available to the Customer in case of late delivery.
7.7. If the Customer fails to take any delivery in time Newtec shall be entitled to at its discretion to store the goods at the Customer's risk and the Customer shall upon demand make immediate payment to Newtec of all costs, charges and expenses incurred or to be incurred by Newtec in respect thereof, including any transportation, storage, and insurance costs that may be incurred.
8.1. The goods shall be carefully examined and tested by the Customer immediately upon receipt. In case the Customer wishes to hold Newtec responsible for defects or any shortfall, the Customer shall immediately and within 5 days after delivery give written notification to Newtec.
8.2. For any nondetectable defects, the Customer shall immediately and in any event within 8 days after the defect has or ought to have appeared give written notice to Newtec. In no event Newtec shall be liable for defects for which Newtec has not been notified of within 12 months after delivery.
8.3. Newtec is responsible for defects exclusively to the extent that the defect is attributable to Newtec's negligence. In the event of a defect for which Newtec is responsible, Newtec shall at its discretion remedy the defect by replacement, further deliveries and/or compensation. If Newtec chooses to repair, the customer is under an obligation to pay traveling expenses and fitter costs.
8.4. If Newtec fails to fulfil its obligations under clause 8.3. within a reasonable time, which cannot be less than 6 weeks commencing with the day Newtec receives notification and evidence of the defect or shortfall, the Customer may by written notice require remedy within a final reasonable time limit, which cannot be less than 4 weeks. If Newtec fails to remedy the defect within the final time limit and to the extent such defect is attributable to Newtec's negligence, the Customer shall be entitled to claim compensation for its direct loss. However, the Customer is not entitled to claim compensation for loss of profit, loss of production or any other consequential loss and the Customer's claim for compensation cannot exceed 5 % of the price for the defective part of the order. The Customer must lodge the claim for compensation in writing to Newtec within 2 weeks after the above final reasonable time limit. Otherwise the right to compensation is forfeited.
8.5. Newtec shall be responsible for defects exclusively to the extent responsibility is stipulated in this clause 8. Any responsibility for Newtec is excluded if the Customer has failed to comply with the procedures set forth in this clause 8. The notifications referred to in clauses 8.1 and 8.2 shall not be considered evidence of any defects or shortfall. The remedies in this clause 8 are the exclusive remedies available to the Customer in case of defects.
9. PRODUCT LIABILITY
9.1. The Customer shall indemnify and hold Newtec harmless to the extent that Newtec incurs liability towards any third party in respect of any damage, for which Newtec is not liable towards the Customer according to clauses 9.2 and 9.3.
9.2. Newtec shall not be liable for loss or damage caused by the goods: (a) to any (movable or immovable) property where the damage occurs after the risk of the goods has passed to the Customer or while the goods are in the Customer's possession; or (b) to products manufactured by the Customer or a third party of which the Goods form a part, where the damage is caused by these products because of properties in the products.
9.3. Except in respect of death or personal injury caused by Newtec's negligence, Newtec shall under no circumstances be liable to the Customer by reason of any representation, or implied warranty, condition or other term, or any duty at common law, or under the express terms of the agreement, for any consequential loss or damage, whether for loss of product or profit, which arise out of or in connection with the supply of goods.
9.4. If a claim for loss or damage as described in this clause is raised by a third party against either Newtec or the Customer either party shall forthwith notify the other party thereof.
10. FORCE MAJEURE
10.1. Newtec shall not be liable for any failure to deliver or any other failure to comply with any contractual obligation due to any cause beyond its direct control including but not limited to the late performance or nonperformance or breach of agreement by Newtec's subsuppliers or freight forwarders, war, riots, intervention by government or local authorities, strikes, lockouts, export and import restrictions, bad weather conditions, fire, lack of raw materials, man power or energy supplies or breakdown of machinery.
11. ARBITRATION AND GOVERNING LAW
11.1. The agreement and any other relationship between Newtec and the Costumer shall be governed by Danish law. Any disputes between Newtec and the Costumer must be settled by arbitration under The Danish Institute of Arbitration in Copenhagen. How-ever, Newtec may, also at its discretion elect to bring an action against the Costumer in any territory in which the Costumer carries on business and in such event elect to apply the ordinary courts of the country and/or the laws of the country..