GENERAL TERMS OF SALE AND DELIVERY
1 These general terms shall apply with respect to any sale from Alpap A/S (hereinafter referred to as Alpap) and its customers unless otherwise specifically agreed in writing.
1. CONCLUSION AND SCOPE OF AGREEMENT
1.1. Alpap’s offers are non-binding and the customer’s acceptance of an offer does not consititute a binding contract. An agreement is concluded, when Alpap has issued an order confirmation and on the conditions stipulated or referred to therein. In the event of any inconsistency or conflict between Alpap’s terms of sale and any conditions, which the customer seeks to impose Alpap’s terms of sale shall prevail.
1.2. Prices quoted by Alpap include only products and services which are expressly stipulated in the order confirmation. In the event that Alpap is requested to supply other or further products or services, such products and services are to be charged separately by Alpap.
2. THE PRODUCTS AND DEVIATION IN QUANTITY
2.1. The products are delivered and manufactured in accordance with descriptions and specifications stipulated or referred to in the order confirmation. Alpap shall only be responsible for the fulfillment of orders in accordance with such descriptions and specifications. Accordingly, Alpap does not undertake any responsibility for the result and utility of the products for the customer. The products are constructed and produced on basis of information from the customer and Alpap is not supposed to advice or warn the customer as to the applicability of the products for the customer.
2.2. The quantities of the products which are actually delivered by Alpap may deviate by +/- 10%. The customer accepts any such deviations in quantity and shall in such cases not be entitled to require delivery of more or less quantities. The customer is invoiced and shall pay for the quantities actually delivered.
2.3. In cases where the customer has approved or has been presented to product drawings, prints, samples or prototypes the customer shall irrespective thereof accept minor variations in the products from such samples and information etc. with respect to prints, gluing and treatment of the surfaces of the products.
2.4. In cases where Alpap has created or wholly or partly participated in the design and/or construction of the products – whether in respect of material choice, surface treatment, technical construction, printing solutions, graphical or technical design of the products or otherwise – Alpap shall not be responsible for any failure therein or mistakes resulting thereof and Alpap shall accordingly not be responsible for defects in the products directly or indirectly resulting for Alpaps participation in the design and construction of the products. Accordingly, the customer shall, prior to submitting or accepting an order, always ensure that the product is suitable for the customer’s purpose.
3. PAYMENT AND DELIVERY
3.1. The terms of payment are as stated in the order confirmation. However, Alpap may at any time further require prepayment or bank guaranty for any part of the unpaid purchase price. In such cases prepayment and bank guaranty shall be supplied to Alpap no later than 8 days after Alpap’s request to the customer and Alpap shall be entitled to postpone any delivery until the customer’s fulfillment thereof.
3.2. All prices are exclusive of VAT. All prices are stipulated on basis of the conditions at the date of order confirmation. Until delivery is effected the customer shall accordingly accept price increases in case of increase in material prices, or in other production costs or due to changes in or new taxes and duties.
3.3. In case of late payment Alpap shall be entitled to claim interests of 1½% per month or part thereof from the due date and until payment has been effected. In the event of late payment Alpap is further entitled to retain all other products and to postpone delivery thereof and to partly or entirely cancel the agreement.
3.4. Delivery is effected Ex Works (cf. Incoterms) unless otherwise stipulated in the order confirmation.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. In cases where Alpap has created or wholly or partly participated in the design and/or construction of the products – whether in respect of material choice, surface treatment, technical construction, printing solutions, graphical or technical design of the products or otherwise – all intellectual property rights to such designs and constructions etc. shall be the exclusive property of Alpap and such rights may accordingly only be applied by the customer or any other third party with the express prior written consent from Alpap.
4.2. In the event that a third party claims that a product constitutes an infringement of any third party rights the customer shall indemnify and hold Alpap harmless from any such claims and costs related thereto.
5. DELIVERY AND DELAY
5.1. Unless a specific time of delivery is stipulated in the order confirmation delivery shall be effected within a reasonable time or at a delivery time communicated by Alpap. In cases where the time of delivery is stipulated in the order confirmation Alpap shall also be entitled to effect delivery prior to the stipulated time of delivery. Any communicated time of delivery whether in an order confirmation or otherwise is estimated by Alpap and is consequently not binding for Alpap and does not constitute any warranty as to the time of delivery. The time of delivery shall be postponed in cases where the customer does not timely give Alpap all information requested by Alpap or agreed to be supplied by the customer. Where supplies from production partners and other sub suppliers are delayed and in cases of force majeure as defined in clause 8 the time of delivery shall be postponed accordingly.
5.2. In case the time of delivery according to clause 5.1. is exceeded significantly and this is caused by Alpap’s negligence, the costumer shall be entitled to give a written notice to Alpap claiming delivery within a reasonable time which cannot be less than at least 4 weeks. In the event that Alpap after expiry of such notice has still not effected delivery and this is caused by Alpap’s negligence the customer shall be entitled to cancel the delayed part of the order (and only that part) and claim compensation for its direct costs due to the delay. Such claim for compensation cannot exceed 10 % of the contract price excl. VAT for the delayed part of the order. Unless it is established that Alpap is guilty of gross negligence Alpap is not responsible for any loss of profit or of production or for any other indirect or consequential loss. In case of late delivery the customer does not have any other remedies available than the remedies expressly described in this clause 5.
6. EXAMINATION AND DEFECTS
6.1. Upon receipt the products shall be carefully examined by the customer in order to establish any defects or inconsistency with the agreement. In case of any defects or any inconsistency the customer shall immediately and no later than 8 days after delivery submit a written notification to Alpap. In case of nondetectable defects, the customer shall immediately and in any event within 8 days after the defect or inconsistency has or ought to have appeared give written notice to Alpap. In no event shall Alpap be liable for defects of which Alpap has not been notified in writing within 6 months after delivery.
6.2. In case of defects according to clause 6.1. Alpap shall at its own discretion remedy the defect by replacement or repair or further deliveries and/or reduction of the contract price. In case of defects the customer shall at Alpap’s request return the products to an address to be instructed by Alpap. In case the customer’s notification of a defect or an inconsistency proves to be wholly or partly incorrect Alpap shall be entitled to claim payment for its time and costs connected thereto. In the event that the costumer has made any changes in the products or stored or handled the products incorrectly Alpap’s liability for defects and any other liability for the products shall automatically be void.
6.3. If Alpap fails to fulfill its obligations described in clause 6.2. within a reasonable time the customer may by written notice require remedy within a final reasonable time limit which cannot be less than 4 weeks. If Alpap fails to remedy the defect by repair or replacement or does not accept to compensate the customer as described in case 6.1. within the final time limit, the customer shall be entitled to claim a reasonable reduction in the purchase price provided that the products claimed to be defective at Alpap’s request are returned to an address instructed by Alpap. In case of such failure by Alpap to remedy the defect and provided that the customer has complied in all respects with this clause 6 the customer shall be entitled to claim compensation for its direct loss which, however, cannot exceed 10% of the purchase price for the defect products. Alpap shall, however, not in any event be responsible for loss of profit, loss of production or any other indirect or consequential loss. Defects in the products do not give the customer any other remedies than expressly described in this clause 6.
7. HANDLING AND STORAGE
7.1. The customer shall handle and store the products carefully and in accordance with Alpap’s guidelines and as described on pallet labels etc. Products for machine erectable cardboard cartons must at all times be stored in an environment with a temperature between 5-25 degrees C and with a relative humidity of 50-60% and may not be exposed to direct sunlight and shall be kept at least 1 meter away from heating appliances. Products glued with polyurethane adhesive must be stored and stay under pressure for at least 48 hours from application of adhesive in order to keep necessary strength of adhesive.
8. PRODUCT LIABILITY
8.1. The customer shall idemnify and hold Alpap harmless to the extent that Alpap incurs liability towards any third party in respect of any damage, for which Alpap is not liable towards the customer according to clause 8.2. and 8.3.
8.2. Alpap shall not be liable for loss or damage caused by the products to any (movable or immovable) property where the damage occurs after the risk of the products has passed to the customer or while the goods are in the customer’s possession.
8.3. Except in respect of death or personal injury caused by Alpap’s negligence, Alpap 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 the products.
8.4. If a claim for loss or damage as described in this clause is raised by a third party against either Alpap or the customer either party shall forthwith notify the other party thereof.
9. FORCE MAJEURE
9.1. Alpap 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 non-performance or breach of agreement by Alpap’s sub-suppliers 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, energy supplies or breakdown of machinery.
10. VENUE AND GOVERNING LAW
10.1. The agreement and any other relationship between Alpap and the customer shall be governed by Danish law (except that the Danish rules regarding choice of law shall not apply). Any disputes between Alpap and the customer must be settled by law suit at Alpap’s home court in Denmark. However, Alpap may also, at its discretion elect to bring an action against the customer in any territory in which the customer carries on business and in such event elect to apply the law of that country.