General Terms and Conditions
1 Definitions and effect of conditions
The Company means CoolSax ApS.
The Customer means and customer that agrees to purchase goods or service of the Company.
These conditions shall apply to and be incorporated into every agreement between the Company and any person, firm or company (the Customer) under which the Company supplies goods or services at the request of the Customer.
These conditions shall supersede all earlier conditions of the Company.
These conditions shall take precedence over any conditions of the Customer and shall not be varied without the written consent of an Officer of the Company.
All quotations and tenders are given and contracts are made by the Company subject to and only upon these terms and conditions and unless previously agreed in writing by an authorized officer of the Company no verbal written or other addition hereto or variation hereof shall be effective, and these terms and conditions supersede and shall prevail over and exclude any other terms and conditions appearing elsewhere including and terms and conditions of the Customer and any course of dealing established between the Company and the Customer.
Tenders and quotations may be withdrawn or varied by the Company at any time and unless otherwise specified shall be deemed to be withdrawn automatically at the expiry of 30 days from their date of issue. No binding contract will in any case arise until the Customer’s order is accepted in writing by the Company.
The Customer shall be responsible for ensuring that any drawings, specifications, descriptions, data, information or other instruction supplied by the Customer or by any agent or representative of the Customer in connection with tendering or quoting are accurate, unambiguous and clearly legible and meet the legal requirements, and the Customer shall indemnify and hold the Company harmless in respect of any liability which may be incurred or sustained by the Company by reason of or arising directly or indirectly in respect of such drawings, specifications, descriptions, data, information or other instruction in relation thereto.
The Company shall take reasonable steps to execute the contract within any quoted period but such time is not guaranteed, nor deemed to be of the essence of the contract. The estimated time for dispatch or delivery shall be extended by a reasonable period if there is any delay caused by a dispute or by any cause beyond the reasonable control of the Company, if a shorter delivery period is agreed than any quoted period an additional charge may be made reflecting any overtime or additional costs involved.
If work is suspended at the request of or delayed through default of the customer the Company shall be entitled to payment for work already carried out, materials specially ordered and other additional costs including cost of personnel standing by.
5 Loss or damage in storage
If goods received appear to be in a damaged condition the Customer must notify the Company in writing within seven working days of the recorded delivery date.
For services received the Customer must notify the Company in writing within one working day of completion of the service works or partial service work as specified and notified by the Company to the Customer.
If such notice is not given the Company shall not be liable to the Customer in respect of any loss or damage suffered by reason of the damage which is apparent upon inspection and the customer shall accept liability as if all the goods or service have been received fully functional and shall not claim against the Company in respect of the damage in transit or use of the serviced part after the completion of the service works and partial service works. The Company shall not in any case be liable for any loss to the customer arising from delay caused by such damage.
If the contract provides for delivery or completion by installments, delay in delivery or completion or non-delivery or non-completion of any installment shall not entitle the customer to treat the contract as at an end or to reject any other installment or completions.
6 Delivery risk and passing of property
Goods shall be at the Customer’s risk from the moment of delivery or commencement of service works, whether or not property of the goods has passed or payment or part payment made therefore or for service works, and thereafter the Customer shall be responsible for insuring the goods.
Property of the goods and in all goods supplied or to be supplied by the Company to the Customer shall not pass to the customer until the full amount due hereunder has been paid to the Company. As long as property in the goods shall remain in the Company the goods shall be set aside from the customer’s general stock of goods and shall be marked with an indication that they remain the property of the Company.
Where property remains with the Company after delivery, the customer may use the goods according to the contract. Property of the Company shall be held by the Customer in a fiduciary capacity for the Company unless and until the full amount hereunder has been paid to the Company.
Where property remains with the Company after delivery of the goods the Customer shall not be entitled to sell the goods and shall be held by the customer in a fiduciary capacity for the Company unless and until the full amount payable hereunder has been paid to the Company.
In the event of the Customer becoming insolvent the right to the goods shall belong to the Company unless and until the full amount payable hereunder has been paid to the Company and within such time the Company, its servants or agents may enter upon the premises of the Customer to recover any goods as yet unpaid or partly unpaid by the Customer.
The contract price excludes Value Added Tax, or any other tax or duty payable, the amount of such taxes or duties shall be added to the contract price and shall be payable by the Customer in the same manner as the contract price.
Within reason the Company shall be entitled to adjust the contract price by such amount as it thinks fit at any time before delivery of the relevant goods or service in the event of any documented increase in the cost to the Company in supplying any goods or service
whether such increase shall result from higher costs of raw materials, labor, transport or overhead expenses or from any other cause whatsoever.
Without prejudice to any other remedy which the Company may have in the event of the Customer cancelling the contract the Company shall be entitled to charge the customer for all expenses incurred by the Company in respect of such contract to the date of cancellation and any loss of profit arising by means of the cancellation of such contract.
Payment shall be made within the agreed payment terms, which unless otherwise agreed in writing beforehand, will be thirty (30) days from date of invoice (“the Due Date”). All payments shall be made in full without deduction in respect of any set-off or counterclaim other than settlement discount, where offered.
If payment of any sum payable to the Company is not made on or before the Due Date the Company shall be entitled to charge interest thereafter on such sum at the rate of one and a half (1,5) per cent per calendar month such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month.
The contract price shall be payable by the Customer notwithstanding any adjustments or correction or defects which may be required to the goods.
If the Customer ceases to pay their debts in the ordinary course of business or cannot pay his debts as they become due or being a company is deemed to be unable to pay its debts or has a winding-up petition issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against them, the Company without prejudice to other remedies shall:
i) have the right not to proceed further with the contract on any other work for the Customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Customer, such charges to be an immediate debt due to them, and;
ii) in respect of all unpaid debts due from the Customer to the Company, have a general lien on all goods and property in the Companies possession (whether worked on or not) and shall be entitled on the expiration of fourteen (14) working days notice to dispose of such goods or property in such manner and at such price as the Company thinks fit and apply the proceeds towards such debts; and
iii) in respect of all unpaid debts due from the Customer to the Company, have a general lien on all goods and property in the Company’s possession and shall be entitled on the expiration of fourteen (14) working days notice to dispose of such goods or property in such manner and at such price as the Company thinks fit and to apply the proceeds toward such debts.
All express or implied warranties or conditions statutory or otherwise as to the quality or fitness for any particular purpose of the goods except to the extent that this provision is held to be unenforceable under or by virtue of any provision contained or any statutory modification or re-enactment thereof for the time being in force, are hereby excluded. The Company shall not be liable in any circumstances whatsoever, whether in contract, tort or otherwise, for loss of anticipated revenue or contracts for any other indirect or consequential loss or damage arising from any cause whatsoever.
The Company shall not be liable for failing to perform the contract whether wholly or in part if the failure is caused wholly or in part by any circumstances outside the Company’s control.
All goods supplied but not manufactured by the Company are sold subject to the conditions of sale of the manufacturer thereof and the sole liability of the Company in respect thereof shall be to give to the customer such benefits as the Company shall receive under any contract which the Company has with such manufacturer. In the event of any failure by such manufacturer for whatever reason to meet such liability which may arise by reason of any defect in such goods, the Company shall be under no liability to the Customer in respect of such defect.
All property supplied to the Company by or on behalf of the Customer shall while it is in the possession of the Company or in transit to or from the customer be deemed to be at the Customer’s risk unless otherwise agreed in writing and the customer should insure accordingly.
Without prejudice to any other remedy which the Company may have in the event of goods or services falling short of that ordered or the quality falling short of that which is reasonably expected bearing in mind the nature of the materials, or the work containing errors which could have reasonably been avoided then
a) the Company reserves the right to correct such errors, quality or quantities, at no additional expense to the Customer, to bring the goods or services back to a level to which was ordered by the Customer; or
b) the Company may reimburse the Customer for the proportion of the work in dispute in the form of a credit against the amount due for the contract; or
c) the Company may, if the options in Clause 1.12a or Clause 1.12b are not exercised, agree to the Customer correcting the quality, quantity or any errors provided that the cost of doing so shall be agreed by both parties in writing in advance and shall not exceed that level agreed. Such level not to exceed the equivalent replacement value and in no case to exceed the total worth of the goods or services of the contract.
The Company reserves the right to invoke independent arbitration to settle any dispute, such arbitration to be binding upon both parties. Such arbitration to be carried out by a reputable industry body.
Unless otherwise specifically agreed, goods shall not be required to comply with any direction, regulation or provision of any foreign law or governmental authority.
Any last Quotation and/or Order Acknowledgement and/or Service Level Agreement issued by the Company and accepted by the Customer, explicitly or by default by not being disputed, is deemed to form part of the terms and conditions of this contract.
No forbearance or indulgence shown or granted by the Company to the Customer whether in respect of these Conditions or otherwise shall in any way affect or prejudice the rights of the Company against the Customer or be regarded as a waiver of these conditions. Notwithstanding, that any provisions of this contract may prove to be illegal or unenforceable the remaining provisions shall continue in full force and effect.
Any notice required or authorized to be given hereunder may be given personally or by telex or by facsimile or by e-mail or by post addressed to such other party at its last known address or at any other address furnished to the other by written notice. Notice so given by letter shall be deemed to have been served seventy two (72) hours after the same is posted and proof that the envelope containing the notice was properly addressed and sent
by prepaid post shall be sufficient evidence of service. Notice so given by telex, email or facsimile shall be deemed to have been served twenty four (24) hours after it shall have been dispatched and that proof that the telex, email or facsimile containing the notice was properly addressed and sent shall be sufficient evidence of service.
Any postage or other similar costs quoted whether verbally or written are estimates based upon the information available. Where applicable, as part of the goods or services offered, the Company must be in possession of cleared funds equal to, or in excess of those deemed necessary by the Company to cover the total cost of posting or similar delivery no less than five (5) banking days before the proposed posting date. Where such funds are not available either in full or in time no liability for any delay in posting will be accepted.
The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.