1. General Rule
These Terms and Conditions of Sale and Delivery ("the Terms and Conditions") shall apply to and constitute an integral part of all sales proposals, orders, confirmations of order and contracts between FLSmidth A/S and the Buyer unless otherwise agreed in writing, the latter to appear explicitly from the FLSmidth A/S proposal/confirmation of order.
All proposals, orders, confirmations of order, contracts and supplies to which the Terms and Conditions apply shall be subject to the Nordic GENERAL CONDITIONS for the Supply of Machinery and other Mechanical, Electrical and Electronic Equipment NL 92 or - provided installation is included in the scope of supply - NLM 94, unless the Terms and Conditions or the FLSmidth A/S proposal/confirmation of order deviate from them.
Sales proposals shall remain valid for sixty (60) days from the proposal date unless the proposal expressly states otherwise.
Delivery shall take place "EX WORKS, Mariager Denmark", unless otherwise agreed. The risk of the equipment shall pass from FLSmidth A/S to the buyer on delivery "EX WORKS, Mariager, Denmark".
The prices quoted are based on delivery ex FLSmidth A/S warehouse in Mariager, Denmark. All prices shall be exclusive of packaging, value added tax and any other taxes, duties and tariffs. FLSmidth A/S reserves the right to adjust the prices quoted/confirmed if during the period until delivery takes place foreign exchange rates vary more than 2%, public taxes and duties including tariffs are adjusted or pay rates are raised in accordance with collective agreements. The prices of equipment offered shall not include installation work nor installation materials unless explicitly stated in the proposal/confirmation of order.
For all orders and supplies the purchase price/contract sum including VAT and taxes shall fall due for payment 30 days after the invoice date. Invoicing shall take place in step with delivery in accordance with Clause 3 above. For orders and supplies comprising major plant and machinery (order values exceeding DKK 100,000.00 exclusive of VAT), the purchase price including VAT and taxes shall fall due for payment at 30% on signing the agreement and 70% on delivery of the main components in accordance with Clause 3 above. Purchase through FLSmidth’s webshop is paid by VISA, Master Card or Maestro in accordance with applicable rules and the provisions stated in FLSmidth’s webshop. The amount is deducted from the account upon shipment of goods. All personal information will be encrypted.
6. Retention of Title
Goods shall remain FLSmidth A/S's property until paid in full in the extent that such retention is valid according to Danish law.
7. Interest etc.
If the buyer fails to pay by the agreed date, FLSmidth A/S (i) shall be entitled without separate notification to receive interest at the rate of 1.5% per month or part of a month from the due date until full payment is effected and (ii) shall be entitled to suspend the contract or (iii) to cancel the agreement if the amount remains overdue for more than sixty (60) days.
8. Packaging and Electronic Scrap
The buyer shall receive no refund for returned packaging. FLSmidth A/S is not obliged to take back electronic scrap, the latter being the responsibility of the buyer.
9. Time of Delivery
The time of delivery shall be reckoned from the date when (i) a binding purchase agreement has been signed and (ii) FLSmidth A/S has received from the buyer all the information that is necessary to settle technical questions regarding the design and contents of the supplies, and (iii) FLSmidth A/S has received prepayment from the buyer if required according to Clause 5 above.
Return of goods is only possible by prior agreement with FLSmidth A/S and only when the goods are in complete and saleable condition and are securely shipped with an enclosed packing list. A return fee of 30% of the purchasing price is always deducted. Special order goods may not be returned.
The buyer is responsible for taking out insurance for machinery and plant to be installed by FLSmidth A/S covering an amount not less than the agreed purchase price. The insurance shall remain valid from delivery of the equipment at the agreed location until approved handing-over.
12. The Seller's Liability for Deficiencies
FLSmidth A/S's liability for deficiencies shall only apply to deficiencies which appear and are communicated by the buyer in writing to FLSmidth A/S within one year from commissioning of the system, machinery, plant or equipment supplied, however, not more than fifteen (15) months from the date of delivery as referred to in Clause 3 above. The seller's liability for deficiencies in connection with spare parts supplies, repair work or replacements shall remain valid for one year from the date of delivery, repair or replacement, however never more than fifteen (15) months from the original date of delivery as referred to in Clause 3 above. Deficiencies shall be repaired or remedied by sending the product or the equipment to the FLSmidth A/S workshop. If requested that deficiencies be repaired on site, the buyer shall cover the travel and accommodation expenses. Unless the agreement includes installation, the buyer shall be responsible for and bear the cost of any dismantling of deficient parts and subsequent fitting of repaired or replaced parts. When having delivered a duly repaired or replaced part to the buyer, FLSmidth A/S shall have fulfilled its obligation regarding the deficient part.
13. Export Control
The buyer accepts that the product may contain technology and software that is subject to export control legislation in the U.S. and EU and the country in which the product is supplied and used and that the supplies are subject to the said legislation which must be complied with by the buyer. The product must not be sold, leased nor transferred to non-approved end users or countries or to a user who is directly or indirectly involved in weapons of mass destruction or genocide. The buyer accepts that restrictions in the U.S. and EU may vary depending on product and time and that the buyer must therefore constantly keep informed about the current rules in the U.S. and EU.
14. Limitation of Liability
FLSmidth A/S's overall liability for all claims under or related to the agreement including the cancellation of same (including liquidated damages due to delay) shall not exceed 10% of the agreed purchase price. FLSmidth A/S's total liability for liquidated damages for delay shall not exceed 5% of the agreed purchase price. The buyer cannot claim compensation from FLSmidth A/S for losses or costs exceeding or in addition to the agreed liquidated damages due to delay, nor - unless explicitly stated by the agreement between the parties - claim other remedies for non-fulfilment. FLSmidth A/S is not liable to the buyer or to other parties for operating losses, loss of profits, loss of use, loss of customers, loss of contracts etc., nor for any financial, special, incidental, consequential or indirect losses, etc.
15. Law and Disputes
The Terms and Conditions and proposals, orders, confirmations of order and contracts to which the Terms and Conditions apply are subject to and shall be governed by Danish law (excluding the CISG).
Disputes concerning or caused by the Terms and Conditions and proposals, orders, confirmations of order and contracts to which the Terms and Conditions apply shall be finally settled through arbitration in accordance with the rules for arbitration proceedings before the Danish Institute of Arbitration. The Arbitral Tribunal shall consist of three (3) members to be appointed in accordance with the above-mentioned rules. The arbitration shall take place in Copenhagen.