EPOS Group A/S: terms and conditions for the supply of goods
Only applicable to Business sales.
Private sales terms and conditions can be seen here.
Business Day: a day (other than a Saturday, Sunday, bank holiday or other public holiday).
Buyer: the person, company, firm, body or organisation who purchases the Goods from the Seller.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.6.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Currency: the currency in which the price of the Goods is to be paid (whether £ sterling, US $, € or another currency), as specified by the Seller, in a quotation, Order acceptance or elsewhere.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Buyer’s order for the Goods, as set out in the Buyer’s written acceptance of the Seller’s quotation or in the Buyer’s purchase order form, if accepted in writing by the Seller, as the case may be.
Specification: any standard specification for the Goods, that is published by the Seller from time to time.
Seller: EPOS Group A/S Denmark or any of its local subsidiaries.
In these Conditions, references to a statute includes any amendment or re-enactment and any secondary legislation made under it; any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; a reference to writing or written includes emails and other electronic messaging; the headings are for convenience and shall not affect interpretation; the singular includes the plural and the opposite applies and reference to one gender includes all genders.
2. BASIS OF CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any information or data provided are complete and accurate.
2.3. The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4. The Buyer waives any right it might otherwise have to rely on any term endorsed on, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.5. Any samples, images, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6. A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7. Any typographical, clerical or other error or omission in any sales literature, website entry, quotation, price list, acceptance, offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.1. The Goods are described in the Seller’s catalogue or on its website, subject to the applicable Specification.
3.2. To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the Specification. This Clause 3.2 shall survive termination of the Contract.
3.3. The Seller reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements.
4. CUSTOMER OBLIGATIONS
4.1. The Buyer shall:
(a) ensure that the Order and any information it provides are complete and accurate;
(b) co-operate with the Seller in all matters relating to the Goods;
(c) ensure that it has prepared its premises to receive the Goods and has all necessary facilities;
(d) provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Goods and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Goods.
(f) any other relevant obligations.
4.2. If the Seller’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Customer Default):
(a) the Seller shall without limiting its other rights or remedies have the right to suspend the supply of Goods until the Buyer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and
(c) the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Customer Default.
5.1. The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Buyer and Seller reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
5.2. The Buyer shall collect the Goods from the Seller’s premises or such other location as may be advised by the Seller prior to delivery (Delivery Location) within 3 Business Days of the Seller notifying the Buyer that the Goods are ready, unless otherwise agreed.
5.3. Delivery is completed on the completion of loading of the Goods at the Delivery Location.
5.4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5. If the Seller fails to deliver the Goods, in the sense of making them available for collection, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6. If the Buyer fails to take delivery of the Goods within 5 Business Days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am local time on the 6th Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and
(b) the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
5.7. If 10 Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
5.8. The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
5.9. The Buyer will inspect the Goods within 5 Business Days of receipt and must give notice to the Seller of any defects immediately, failing which the Goods shall be deemed, in all respects, to be in accordance with the Contract and the Buyer shall not be entitled to any refund.
6.1. The Seller warrants that on delivery, and for a period of 24 months from the date of delivery (warranty period), the Goods shall, unless otherwise specified:
(a) conform in all material respects with the applicable Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality; and
(d) be fit for any purpose held out by the Seller.
6.2. Subject to Clause 6.3, if:
(a) the Buyer gives notice in writing to the Seller during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 6.1;
(b) the Seller is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost, unless otherwise specified.
If the Seller accepts that they are defective, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3. The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in Clause 6.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with Clause 6.2;
(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Seller following any design, instruction or specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Seller;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4. Except as provided in this Clause 6, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in Clause 6.1.
6.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6. These Conditions shall apply to any replacement Goods supplied by the Seller.
7. TITLE AND RISK
7.1. The risk in the Goods shall pass to the Buyer on completion of delivery (on-loading) at the Delivery Location. The risk during carriage shall be for the Buyer’s account, even if the Seller arranges carriage and insurance on behalf of the Buyer.
7.2. Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3. Until title to the Goods has passed to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
(b) not remove, deface or obscure any identifying RIFD, tag, mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Seller immediately if it becomes subject to any of the events listed in Clause 11.1; and
(e) give the Seller such information relating to the Goods as the Seller may require from time to time.
7.4. If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in Clause 11.1, then, without limiting any other right or remedy the Seller may have:
(a) the Buyer’s right to possess the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Seller may at any time:
(i) require the Buyer to deliver up all Goods in its possession that have not been irrevocably incorporated into another product; and
(ii) if the Buyer fails to do so promptly, the Seller is irrevocably licensed to enter any premises or vehicles of the Buyer or of any third party where the Goods are stored or loaded in order to recover them.
7.5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become immediately due and payable.
7.6. Subject to the terms of these Conditions, the Buyer is licensed by the Seller to incorporate the Goods in or with any other product or products subject to the express condition that the new product or products or any other chattel whatsoever containing any part of the said Goods shall be separately stored and marked so as to be identifiable as being made from or with the Goods the property of the Seller.
7.7. If the Goods the property of the Seller are admixed with goods the property of the Buyer or are incorporated therein, the product thereof shall become and/or shall be deemed to be the sole and exclusive property of the Seller.
7.8. If Goods the property of the Seller are admixed with goods the property of any person other than the Buyer or are incorporated therein, the product thereof shall become or shall be deemed to be owned in common with that other person.
7.9. If the Buyer has not received the proceeds of any such sale he will, if called upon so to do by the Seller, within seven days thereof assign to the Seller all rights against the person or persons to whom he has supplied any product or chattel made from or with the Seller’s Goods.
8. PRICE AND PAYMENT
8.1. The price of the Goods shall be the price in the Currency set out in the Order, or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date of delivery.
8.2. The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
8.3. The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall, where applicable, be invoiced to the Buyer.
8.4. The Seller may invoice the Buyer for the Goods at any time prior to delivery.
8.5. The Buyer shall pay the invoice in the Currency in full and in cleared funds in advance of delivery, or as otherwise agreed by the Seller in writing. Payment shall be made to the bank account nominated in writing by the Seller. Time for payment is of the essence. The Buyer shall bear all costs and charges relating to currency exchange and bank transfers.
8.6. If the Seller allows credit terms, it is entitled to review, alter or withdraw such terms and require C.W.O, C.O.D. or payment in advance of delivery.
If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above the local National Banks’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
8.7. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
8.8 Unless otherwise specified the required payment term is 30 days net.
9. INTELLECTUAL PROPERTY
9.1. All Intellectual Property Rights in or arising out of or in connection with the Goods shall be owned by the Seller. The sale of the Goods and the provision of technical data by the Seller to the Buyer does not imply freedom from Intellectual Property Rights in respect of the Goods or such data all of which are expressly reserved to the Seller.
9.2. The Buyer acknowledges that, in respect of any third party Intellectual Property Rights, the Buyer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a license from the relevant licensor on such terms as will entitle the Seller to license such rights to the Buyer.
9.3. The Buyer warrants that any design, specification or instructions furnished or given by it shall not be such as will cause the Seller to infringe any Intellectual Property Rights in the performance of the Contract and the Buyer shall keep the Seller fully and completely indemnified against each and every claim of such nature howsoever arising.
9.4. Trademarks, copyrights legends, serial numbers etc. must not be removed or defaced by Buyer. Buyer must also ensure that such protective mechanisms are not removed by their customers.
9.5. In cases where copyright, trade mark or other Intellectual Property Right infringements become known to the Buyer, these must be reported immediately to the Seller.
10. MATERIALS SUPPLIED BY THE BUYER
In the event that the Buyer supplies materials for the purpose of facilitating fulfilment of the Contract such materials shall be provided at the time requested by the Seller and if defective the Buyer shall not be entitled to reject the Goods nor make deductions from the Contract price nor seek damages against the Seller. Further the Buyer shall indemnify and hold safe and harmless the Seller from all liability for damages or otherwise arising from defects in such materials supplied.
11. LIMITATION OF LIABILITY
11.1. Nothing in these Conditions shall limit or exclude the Seller’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
11.2. Subject to Clause 12.1:
(a) the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contracts or revenue or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Seller’s aggregate liability to the Buyer for all and any claims in respect of all other loss and damage arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the greater of DKK 1,000,000 (one million Danish Krone) or the invoice value of the Goods purchased by the Buyer from the Seller in the 12 month period before the claim arose.
12. FORCE MAJEURE
Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this Contract by giving 14 days’ written notice to the affected party, provided the Force Majeure Event does not cease during the notice period.
13. EXPORT SALES
(a) In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
(b) Where the Goods are supplied for export, the provisions of this clause shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
(c) The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
(d) The Seller shall be under no obligation to arrange carriage for the delivery of the Goods to the Buyer.
(e) In the event that export licenses shall be required the Seller shall take all reasonable steps to procure them and the cost thereof shall be chargeable to the Buyer (including a reasonable charge for the time expended by the Seller in connection therewith and the Seller’s out-of-pocket expenses). The Buyer shall take all reasonable steps to procure any import licenses required and bear and pay any expenses in connection with the importation of the Goods. The Contract shall be conditional upon all such licenses and consents being obtained within a reasonable time
14.1. Storage charges
If the Buyer does not collect the Goods when made available or if delivery is delayed at the Buyer’s request, the Seller is entitled to charge for storage from the date of availability, at its rate from time to time applicable, such charges to be invoiced monthly and paid within 7 days of invoicing.
14.2. Cancellation etc
(a) The Buyer shall have no right to cancel a Contract. If in its absolute discretion, the Seller is prepared to accept a request for cancellation, a precondition will be that the Buyer indemnifies and pays the Seller for all costs, expenses, loss (including but not limited to loss of profit on the Order) and damage which the Seller suffers or incurs if it accepts the cancellation.
(b) Goods are not supplied on a “sale or return” basis. The return of Goods for credit will only be accepted by the Seller with the Seller’s prior written agreement and then only at the Sellers discretion, including if the Seller considers that the Goods are in a new, saleable condition. Any such Goods accepted for return shall be returned at the Buyer’s cost and risk, with the Seller’s RAN (returns authority number) and shall be subject to inspection by the Seller, who shall notify the Buyer if it will give credit or not. Where authorized all returns will be subject to a charge, as decided by the Seller from time to time.
14.3. Assignment and other dealings
(a) The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
(a) Each party undertakes that it shall not at any time during a Contract and for a period of 2 years after the last Contract between the parties, disclose to any person any confidential information concerning the business, affairs, sales and marketing strategies, suppliers or customers of the other party or of any member of the group to which the other party belongs (Confidential Information), except as permitted by Clause 15.4(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s Confidential Information:
(iii) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this Clause 15.4; and
(iv) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14.5. Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
A waiver of any right or remedy is only effective if given in writing [and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract (other than for legal proceedings) shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, air mail or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the relevant address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by air mail, on the fifth Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, on the Business Day of transmission (provided no failure notice is received).
14.10. Third party rights
No one other than a party to this Contract shall have any right to enforce any of its terms.
14.11. Health & Safety
The Seller gives the Buyer notice that the Seller has available information or product literature concerning the conditions necessary to ensure that the Goods supplied hereunder will be safe and without risk to health when properly used. Unless the Buyer requests such information or literature immediately on receipt of these Conditions it will be assumed that the Buyer is already in possession of such information and literature and does not require any information or advice in connection with the safe use of the Goods at work. Such information is available on the Seller’s website
14.12. Governing law and disputes
(a) The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with Danish law.
(b) Each party irrevocably agrees that the municipality court of Copenhagen shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.