These sales, delivery and payment terms (hereinafter “the Terms”) apply to all offers, orders and deliveries supplied by JKF Industri Sdn Bhd (hereinafter “JKF”) to any customer (hereinafter “the Buyer”) (hereinafter collectively referred to as “the Parties”), unless expressly agreed otherwise.
JKF cannot be bound by terms applied by the Buyer, including purchasing terms, even if JKF has not objected to such terms.
All offers are made subject to the goods being unsold. If JKF makes an offer that does not stipulate a specific time for acceptance, the offer will expire if not accepted by the Buyer within 30 days of the date of the offer.
All prices are stated in EURO.
Payment terms are 50% down payment upon confirmation of order and balance of 50% prior to delivery of goods unless otherwise agreed in writing.
If payment is made after the due date and the delay is no fault of JKF, JKF is entitled to charge interest on the sum outstanding as from the due date, at a rate equivalent to 1.5 % per month or part thereof.
The Buyer is not entitled to offset any counterclaims against JKF unless expressly agreed in writing by JKF, and does not have the right to withhold any of the purchase sums by reason of counterclaims of any kind.
5. Retention of title
JKF reserves the right within the limitations of mandatory laws to retention of title to the item sold until payment for the entire purchase sum, plus any costs incurred, has been made to JKF.
Unless otherwise agreed in writing between the Parties, the delivery dates stated are ex-works (EXW) JKF’s address. The delivery clause (EXW) agreed between the Parties is to be interpreted in accordance with the INCOTERMS current at the time of signing the agreement (currently INCOTERMS 2010).
The delivery date is set by JKF according to the best judgement, and if this cannot be kept to, the Buyer will be informed accordingly, with when, as far as possible, delivery can be expected to take place. Any delay does not give the Buyer the right to cancel the sale and/or claim any form of financial compensation from JKF.
Packaging, if applicable, may only be returned by prior written agreement. Return of packaging is at the Buyer’s own expense and risk. The Buyer’s packaging will be credited after reception and approval by JKF.
8. Product information and confidentiality
All illustrations, technical drawings and brochures issued by JKF before or after the contract have been entered into remain the property of JKF and must be returned to JKF on request. Such materials must be treated with strict confidentiality and cannot be used, copied or passed on without written agreement, or abused in any other manner.
The Buyer undertakes to generally observe confidentiality concerning all aspects of JKF known to the Buyer as a result of the information the Parties have exchanged in the course of their dealings.
Breach of this provision by the Buyer shall incur a fine payable to JKF of EURO 10,000. The fine shall be payable for each breach of the provision, and if the breach consists of continuation of a previous breach, the fine shall be payable for each 14 day period of continuation or part thereof. Payment of a fine shall not relieve the Buyer of the above obligations, nor prevent or constrain JKF from claiming compensation for any loss JKF may have incurred arising from the breach, in that payment of the fine by the Buyer shall not be included in calculation of JKF’s loss. In addition to the above, JKF is entitled to take out an injunction.
9. Liability for defects and deficiencies and warranty claims
Upon receipt of the goods sold at the Buyer’s address, the Buyer shall immediately perform a thorough examination of the goods, including quantity and specifications.
Should the Buyer wish to claim for any defects or deficiencies, including with regard to the quantity or specifications delivered, which the Buyer has or should have discovered in the course of thorough examination of the goods, a written claim shall be submitted to JKF without undue delay and within 14 days of receipt of the goods at the Buyer’s address. JKF is entitled to reject any claims received after the expiry of the period stated above.
JKF warrants performing redelivery/remedy of goods which are defective or deficient due to material or manufacturing error for goods which the Buyer has not nor should have discovered by thorough examination for a period of 12 consecutive months after delivery. However, the Buyer shall submit a claim to JKF immediately if discovering such defects or deficiencies.
Defective or deficient goods will either be remedied or replaced within a reasonable period of time at JKF’s discretion. Modification/interference with the goods without JKF’s written consent releases JKF from any obligation.
Remedy/redelivery by JKF of elements of a delivery shall be on the same terms and conditions as for the original delivery, including those stated in item 6. JKF’s obligation to remedy or redeliver does not, however, apply to any part of an order more than 1 year after delivery to the Buyer.
Once liability for the order has been transferred to the Buyer, JKF bears no responsibility for any defects over and above the obligations specified in this provision.
10. Force majeure
The following circumstances are intended as examples of events resulting in exemption from liability should they prevent fulfilment of the contract:
Industrial disputes, strikes, lockout or any other circumstances beyond the control of the parties, such as fire, war, mobilisation, unforeseen military call-up, acts of sabotage, requisitioning, confiscation, currency restrictions, import ban, export ban, riots, unrest, fuel shortage, general scarcity of goods, restrictions in power supplies and defects in deliveries from sub-suppliers or delays with such deliveries as a result of any of the aforementioned circumstances.
It should be specifically noted that the above is not an exhaustive list of examples, and there may be other examples that come under limitation of liability. If delivery is temporarily delayed by one or more of the aforementioned circumstances, the delivery date will be correspondingly postponed. If delivery is prevented for more than 12 weeks, JKF is entitled to cancel the relevant contract without liability.
Items sold can only be returned by prior written agreement, and upon obtaining a returned goods order number. Return will be at the Buyer’s expense and risk and should include JKF’s invoice number and the date of the original delivery.
Returned goods will be credited once they have been inspected and approved, normally to the value of 85% of invoice price (unless otherwise agreed in writing), less any costs incurred by JKF for inspection, preparation or repair. If JKF is charged for shipping costs etc., JKF is also entitled to demand these be refunded by the Buyer and to offset these against any claims by the Buyer against JKF.
12. Product liability
JKF is not liable for damage to property or effects that occur while the item is in the possession of the Buyer. Neither is JKF liable for damage to products manufactured by the Buyer or to products of which these form a part. JKF is not liable for any operating loss, lost earnings or other indirect loss.
To the extent that product liability may be imposed on JKF with regard to third parties, the Buyer is obliged to compensate JKF to the same extent that JKF’s liability is limited as per the above. These limitations to JKF’s liability do not apply if JKF is guilty of gross negligence. If a third party puts forward a claim against one of the Parties for compensation with reference to this point, that party must immediately inform the other party. The Buyer can be sued at the same court that handles any claims for compensation against JKF, in consequence of damage alleged to have been caused by one of JKF’s deliveries. JKF’s product liability can never exceed the cover JKF has for product liability insurance.
Notwithstanding the above, JKF cannot be held liable for any indirect loss such as operating loss, consequential loss, loss of profit etc., which a defect or deficiency could cause the Buyer or a third party, including indirect loss etc., arising as a result of delayed delivery or defects/deficiencies in the goods sold.
Any compensation claim against JKF cannot exceed the invoice value for the goods sold.
Should one or more of the provisions in these terms be deemed invalid, illegal or non-applicable, the validity, legality or applicability of all other provisions shall not be affected or lessened as a result thereof.
All disputes between the parties shall be settled under Danish Law including the Danish Sale of Goods Act, but with the exception of Danish jurisdiction rules. The International Sale of Goods Act (CISG) shall neither be wholly nor partially applied.
Any dispute regulated by the terms shall be resolved by arbitration at the Danish Institute of Arbitration, according to the institute’s rules, which apply when an arbitration case is brought with the amendments stated below.
However, the Parties agree that the arbitral tribunal shall consist of 3 members, of whom each party will appoint one member, and the Danish Institute of Arbitration will appoint the tribunal chairman. If a party fails to appoint a member within 14 days of being requested to do so by the Danish Institute of Arbitration, the institute will appoint a member on behalf of that party.
The tribunal shall sit in Hadsund.
The original version of this document is in Danish. In the event of discrepancies between the Danish and English versions, the Danish version will take preference.