Terms of sale and delivery

General terms of sale and delivery

Purchase contract, Danish Machinery Dealers' Association (Dansk Maskinhandlerforening), December 2023

Basis of the agreement

1.1. These general terms of sale and delivery (December 2023) apply to all purchase agreements unless otherwise agreed in writing.

1.2. This purchase agreement is concluded between the Seller, who is a member of the Danish Machinery Dealers' Association (the Seller), and a commercial Buyer (the Buyer).

1.3. If the Buyer disagrees with the content of the purchase agreement, the Buyer must raise an objection no later than 5 working days after the purchase agreement is concluded, and in any case no later than on delivery.

1.4. Subsequent agreements are binding only if accepted in writing by both parties. If the purchase agreement deviates from the wording of the order confirmation, the purchase agreement takes precedence over the order confirmation.

Prices

2.1. The Seller may adjust prices of goods not to be delivered immediately to compensate for any changes in public charges, customs tariffs, exchange rates etc. that occur before delivery.

Delivery and risk

3.1. Unless otherwise agreed between the parties, delivery takes place ex the Seller's business address (EXW Incoterms).

3.2. If it is agreed that the Seller is to dispatch the goods, the Buyer bears all costs of freight, shipping and any insurance. The Buyer bears the risk of accidental loss of or damage to the goods once the goods leave the Seller's business address.

Seller's limited liability for delay

4.1. Unless otherwise expressly stated in the basis of the agreement, the delivery time stated by the Seller is approximate. The Seller may require the delivery time to be changed in the event of any change or addition to the order.

4.2. If delay and/or price increases arise due to shortages of materials/goods/labour and/or problems with supply and/or transport at the Seller's supplier/subcontractor, the Seller is not liable unless the delay and/or price increase is due to gross negligence on the part of the Seller. A delay or price increase for the above reasons does not entitle the Buyer to cancel the purchase unless the Seller is able to cancel the purchase with its own supplier at the same time at no cost to the Seller.

4.3. Delay for reasons other than those mentioned in clause 4.2 or clause 4.6 that lasts longer than 60 days entitles the Buyer to cancel the purchase.

4.4. As a result of the Seller's delay or the Buyer's own termination of the agreement, the Buyer cannot claim compensation for operating losses, including loss of crops, seed, chemicals, fertiliser etc., or loss of data, time, profit or other indirect losses, unless the Buyer can document that the delay is due to gross negligence on the part of the Seller.

4.5. The Seller cannot be obliged to pay compensation of more than DKK 100,000 in total for delay per purchase agreement.

4.6. In this agreement, force majeure is understood as an impediment arising from natural disaster, war, regional unrest, pandemic, supplier failure or similar event that makes delivery impossible or increases its cost to the Seller by more than 300 %. Delay due to force majeure only entitles the Buyer to terminate the contract if the goods have not been delivered at least 8 days before the Buyer's season of use for the goods, while the Seller is entitled to cancel the purchase when the impediment to delivery has lasted more than 60 days. The Buyer is not entitled to compensation of any kind in the event of force majeure.

Service, complaints and defects

5.1. The Buyer is obliged to carefully observe the instructions in the user manual supplied by the Seller and in other written or oral information from the Seller about use and maintenance. The Buyer is at all times obliged to ensure that the goods are used in accordance with applicable law, including road traffic and environmental legislation etc.

5.2. On receipt, and before the goods are put into use, adjusted or processed, the Buyer must check whether the goods correspond to the agreed quality and quantity and check for any defects.

5.3. If the Buyer finds that the goods are not in accordance with the contract, the Buyer must immediately notify the Seller in writing with a description of the defect. Notice of defects must be received by the Seller no later than 14 days after the defect was or should have been discovered by the Buyer.

5.4. When purchasing new goods, including machines, electrical systems, tyres and hoses, any claim for defects, of whatever nature, must be made no later than 12 months from the date of delivery, and for sales of new spare parts no later than 6 months from the date of delivery, unless otherwise agreed in writing. For seasonal machines delivered outside the machine's season, the period does not begin until the start of the following season.

5.5. For new goods, the Seller will, within the 12-month period, replace parts that are defective due to faults in materials, assembly or manufacture. Replacement does not take place if the fault is due to the Buyer not following the Seller's instructions, cf. clause 5.1, if replacement is requested due to normal wear, if spare parts other than original parts or parts specified by the Seller have been used, if the repair has been carried out by workshops not approved by the Seller, or if a modification made by the Buyer meant that the goods sold no longer met statutory requirements, certificates or CE marking.

5.6. Costs in connection with justified complaints are borne by the Seller. However, the Seller is not obliged to bear installation costs in cases where installation can normally be carried out by the Buyer. If the Buyer has had additional equipment fitted after delivery, the Buyer bears any additional costs this causes in connection with remedying defects. The Seller reserves the right to invoice the Buyer for costs related to unjustified complaints.

5.7. If defects are demonstrated for which the Seller is liable, the Seller is entitled and obliged, at its own discretion and within a reasonable time, either to make a replacement delivery, remedy the defect or grant the Buyer a proportionate reduction in the agreed purchase price.

5.8. As a result of defects in the goods or the Buyer's own termination of the agreement, the Buyer cannot claim compensation for operating losses, including loss of crops, seed, chemicals, fertiliser etc., or loss of data, time, profit or other indirect losses, unless the Buyer can document that the defect is due to gross negligence on the part of the Seller.

5.9. The Seller cannot be obliged to pay compensation of more than DKK 100,000 in total for defects per purchase agreement and a maximum of DKK 500,000 in compensation per year.

5.10. If the Seller enters into negotiations with the Buyer with a view to finding an amicable solution to a complaint, this does not mean that the Seller has accepted the complaint. The Seller therefore remains entitled to invoke the agreed complaint periods and limitations of liability against the Buyer.

Used / trade-in goods

6.1. In the case of the sale or trade-in of used goods, including machines and spare parts, the Buyer has examined the goods and the Seller has given the opportunity to test them, and the goods are sold as seen and as is, without any liability and without any right of complaint, subject however to the following.

6.2. If the selling party has neglected its duty of fair disclosure, or if the machine etc. is in a significantly worse condition than could be expected taking into account the price and other circumstances, clause 6.1 does not apply.

6.3. The Buyer is at all times obliged to ensure that the goods are used in accordance with applicable law, including road traffic and environmental legislation etc.

6.4. In the case of the sale or trade-in of used machines, the purchasing party has a right of complaint regarding defects for a maximum of 4 months after delivery.

6.5. The Buyer warrants the mileage/hours, year of manufacture, compliance with applicable rules and CE marking, including emission rules, of the machine sold or traded in by the Buyer, and that the machine is free of encumbrances and has not been subject to structural modifications, unless otherwise agreed in writing.

Payment

7.1. Payment is made in cash on delivery unless otherwise agreed in writing.

7.2. If the agreed payment date is exceeded, the Buyer must pay default interest of 2 % per commenced month from the date of delivery until payment is made, as well as a fee of DKK 300 for each written payment reminder.

7.3. The Seller reserves the right to apply the Buyer's payments first to any interest and costs payable by the Buyer, insurance premiums and any repair and spare-parts costs in connection with the goods. If payments are applied in this way, it does not constitute a breach of the Buyer's obligations, as the agreed instalment plan is extended accordingly, cf. general principles of law (formerly section 28(3) of the Danish Credit Agreements Act).

Credit purchases, retention of title and duty to insure

8.1. The Seller retains title to the goods sold until full, valid payment of the purchase price, interest, costs etc. has been made.

8.2. If the purchase is made on credit, the Buyer is obliged, on request before delivery, to sign the purchase agreement, insurance application etc. The Buyer is obliged to take out the necessary liability, comprehensive and fire insurance and, on request, to document compliance by presenting policies and receipts for premiums paid. The Buyer must ensure that the Seller has an assignment of any insurance sum until the goods are paid in full. The insurance sum serves as priority settlement of the Seller's claim insofar as it is not used to repair the goods.

8.3. Until full payment has been made, the Buyer must comply with clauses 8.3–8.6, including keeping the goods in good and proper condition and giving the Seller access to inspect them.

8.4. The Buyer is not entitled to sell, pledge or otherwise dispose of the goods in such a way that a third party acquires rights over them. If the goods are rented out or lent, the Buyer must first take out the insurance policies mentioned in clause 8.2 and inform the Seller where the goods are located.

8.5. The Buyer may not, without the Seller's prior written consent, hand over the goods to others for repair unless the repair is paid in cash.

8.6. The Buyer must notify the Seller immediately of any permanent change of address.

Product liability

9.1. The Seller's liability for damage to property cannot exceed DKK 2 million unless otherwise agreed in writing.

9.2. The Seller is only liable for damage if the Seller has acted negligently or intentionally.

9.3. It is also agreed between the Buyer and the Seller that the Seller can never incur any product liability beyond what follows from Danish law and case law on product liability.

9.4. Notwithstanding clauses 9.1–9.3, the Seller is in no case liable for indirect losses, including operating losses, including loss of crops, seed, chemicals, fertiliser etc., or loss of data, time or profit, unless the Buyer can document that the loss is due to gross negligence on the part of the Seller.

9.5. If the Seller is held liable to a third party due to the Buyer's use, extension, modification, scrapping, disposal, sale, lending, renting, leasing or other disposition of the machine sold, the Buyer is obliged to indemnify the Seller to the extent that the liability exceeds the limits stated in clauses 9.1–9.4.

9.6. Both the Buyer and the Seller are obliged to accept being sued before the same court that hears any product liability case against the other party.

Personal data

10.1. In connection with this transaction, the Seller has received personal data from the Buyer, which the Seller has registered as part of this agreement. For information on the processing of personal data, please refer to the privacy policy on the Seller's website.

10.2. In the case of the purchase of machines or equipment with GPS and recording functions, the Buyer's/user's personal data (typically the Buyer's name, the ID number and operating hours of the Buyer's machine, time and geographical location) may be processed as part of performing the function, and the Buyer hereby consents to the Buyer's personal data being processed to the extent necessary as part of the function and confirms that the Buyer has ensured that any users' data may lawfully be collected and processed. The place of processing is stated in the instruction manual etc. and may be outside the EU.

10.3. In the event of a warranty and/or complaint case being registered, or otherwise as part of the Seller's compliance with its obligations to the supplier/manufacturer, the Buyer's personal data (typically the Buyer's name, address, email, telephone number, time of purchase and identification of the goods) may be transferred to the extent necessary to an importer or manufacturer, which may be located outside the EU.

10.4. The Buyer may withdraw consent at any time, but this may result in disadvantages, including reduced access to GPS information and warranty.

Disputes

11.1. Disputes concerning or in connection with this agreement shall be settled under Danish law (excluding the CISG) by legal proceedings before the court in the Seller's jurisdiction.