1. LEGAL FRAMEWORK These terms of sale and delivery apply to all purchases made from A/S Carl Matzens Teglværker and Gråsten Teglværk A/S (“the Seller”). All purchases are subject to the Danish Sale of Goods Act (købeloven) and AB 18 in that order, but only to the extent that the regulations have not been deviated from in these terms of sale and delivery.
2. FORMATION OF AGREEMENT
2.1 FORMATION OF THE AGREEMENT The Seller’s offer remains valid for 30 days. However, a final agreement is not concluded until the buyer has received the Seller’s written order confirmation. The Seller is bound by the contents of the order confirmation only. Any changes or additions to the final agreement are only valid if agreed upon in writing by both parties.
2.2 ORDERS Note that all orders are binding and that there is a purchase obligation for all orders as a general rule, and they therefore cannot be cancelled.
2.3 CUSTOM-MADE PRODUCTS Note that there is a purchase obligation for the entire order of customised bricks, including mixed bricks and moulded bricks within the specified period, and they can therefore not be cancelled.
2.4 CANCELLATION OF OTHER PRODUCTS For other products, the Seller reserves the right to charge the buyer 20% of the agreed price to cover costs related to order registration, production planning and similar in the event of cancellation. On the date of delivery, the Seller is entitled to adjust the price to reflect changes in exchange rates, procurement costs, customs, freight and other matters beyond the Seller’s control or influence.
3. DELIVERY
3.1 PLACE OF DELIVERY AND RISK Unless otherwise agreed, delivery takes place at the building site, in the alternative at the buyer’s business address. Delivery is considered complete upon kerbside delivery at which point the risk passes to the buyer. A key condition for the conclusion of the agreement is that there is a trafficable road to the place of delivery. If there is no trafficable road to the agreed point of delivery, the Seller has the right to cancel the trade or, in the alternative, to claim reimbursement for any additional actual expenses beyond the purchase price. Delays caused by lack of a trafficable road (such as ferry delays or waiting times etc.) cannot be invoked by the buyer. For deliveries in instalments, the Seller must make the delivery according to the buyer’s written request concerning delivery and the Seller’s written confirmation. When the buyer collects goods, the risk passes to the buyer once loading is completed.
3.2 ACCEPTANCE CHECK AND CLAIMS The buyer is obliged to immediately check upon receipt that the agreed and confirmed quantity has been delivered and that the goods are intact and undamaged. If the buyer notices insufficient quantities or visible damage, including transport damage, the buyer must immediately inform the Seller by marking the bill of carriage to the Seller’s driver or in writing to the Seller. If the buyer fails to make such claims immediately upon delivery, the buyer cannot later claim insufficient quantities or visible transport damage. See in particular section 5.1, which states that damage to bricks during loading and unloading of up to 5% of the delivered quantity does not constitute a defect. Damage caused to pavements, surfaces, pipes, cables and/or roads during delivery via the designated or expected access route is the buyer’s responsibility and is of no relevance to the Seller. For deliveries in instalments, note that small variations in product shades are likely to increase compared to one combined delivery. This does not constitute a defect. Note in particular that once the goods have been put to use, no claims for defects can be made against the Seller.
4. PAYMENT
4.1 TERMS OF PAYMENT Terms of payment are 8 days -1% or end of the month +14 days from the invoice date. Unless otherwise agreed, the agreed price is the current price on the date of delivery. Packaging and transport costs will be invoiced to the buyer. Undamaged wooden pallets from the Seller will be accepted back subject to a return deduction and freight costs.
4.2 INTEREST If the buyer fails to pay on time due to reasons beyond the Seller’s control, the Seller is entitled to charge interest on the overdue amount at a rate of 1% per month unless a higher interest rate is specified in the order confirmation.
4.3 TERMINATION If the buyer fails to pay an overdue invoice within 14 days of receiving written demand for payment from the Seller, the Seller has the right to the following in addition to interest under clause 4.2: a) cancel the sale of the part of the delivery affected by the delay, b) cancel the part of the delivery not yet delivered to the buyer or demand advance payment for it and/or c) assert other remedies for breach.
5. DEFECTS
5.1 DAMAGES IN CASE OF DEFECTS General rules of Danish law on damages primarily apply in cases of defects; however, the Seller cannot be held liable for any operating loss, loss of profit or any other indirect loss. Damage to bricks during unloading and loading, amounting to up to 5% of the delivered goods, does not constitute a defect. If defects are discovered, the buyer must immediately document this without delay as per AB18, for example through photographic evidence, and send it to the Seller.
5.2 REMEDY OF DEFECTS If a delivery from the Seller proves to be defective, the Seller has the right to the following within a reasonable time: a) remedy the defects b) make a replacement delivery If the Seller fails to remedy a defect within a reasonable time for reasons beyond the buyer’s control and the defect is not remedied within a reasonable deadline of at least 7 days, the buyer may cancel the order(s) affected by the defect without further notice by written notification to the Seller.
5.3 LIMITATION OF LIABILITY In addition to the above, the buyer is entitled to claim the usual damages. However, such claims for damages cannot exceed 7.5% of the invoiced value excluding freight and pallets. The Seller can never be held liable for any operating loss, loss of profit or any other indirect loss, see clause 6.1. Furthermore, the buyer has no other rights due to defects in the delivered goods.
5.4 APPEARANCE AND STORAGE OF NATURAL MATERIALS The bricks delivered by the Seller are made from natural materials. The buyer should expect variations in colour shades compared to the provided sales materials. Such colour variations in relation to the provided sales material do not constitute a defect. It is also recommended to mix bricks from several pallets when using them, even for brick types of one colour. For deliveries in instalments, new orders should be placed so that the new delivery can be mixed with one quarter of the preceding delivery. Note that deliveries are made in transport packaging, not storage material. All forms of damage that may occur during storage of the materials are therefore of no relevance to the Seller.
5.5 INSPECTION FOR DEFECTS The seller is not obliged to participate in an inspection for defects related to the contract(s) for which brick products have been supplied. The Seller’s refusal to participate is not to be considered a waiver of any objections.
5.6 LAPSE OF TIME Any liability for defects in the delivery ends no later than five years after the handover of the building in which the delivery is incorporated. For deliveries to stock or resale, liability ends no later than six years after delivery to stock or resale.
5.7 GUIDANCE The Seller is not liable for defects that may arise as a result of assisting a business customer with calculations of brick quantities, sizing of lintels/beams, methods and similar as this assistance is solely to be regarded as a service.
5.8 GENERAL STANDARDS AND INSTRUCTIONS Complaints due to the buyer’s failure to comply with general norms and instructions for brickwork constructions and mortar are of no relevance to the Seller. Further processing of the delivered product, execution, surface treatment etc. are of no relevance to the Seller. The guidance applicable from time to time, issued by the Masonry Trade Information Council (Murerfagets Oplysningsråd (Murerhåndbogen 2016)) as well as guidance published by A/S Carl Matzens Teglværker and Gråsten Teglværk A/S must be followed in all cases. The Seller particularly refers to www.matzentegl.dk, where various guidelines issued by A/S Carl Matzens Teglværker and Gråsten Teglværk A/S can be found.
6. DELAY/EXTENSION OF TIME
6.1 DAMAGES FOR DELAY General rules of Danish law on damages apply in case of delay by the Seller; however, the Seller is not liable for any operating loss, loss of profit or any other indirect loss.
6.2 EXTENSION OF TIME If the Seller anticipates a delay, the Seller must immediately inform the buyer, providing the reason for the delay and a new expected date of delivery. The buyer cannot exercise any remedies for breach of contract in such cases. The Seller is entitled to an extension of time in cases of incorrect firing, operational disruptions and similar events as well as other situations mentioned in section 39 of AB 18. Note that the Seller has a further right to an extension of time if unforeseen delays or complications arise in the production facilities as these delays often involve cooling down the kilns, repairing issues and subsequently reheating the kilns. This process can last several days. If the Seller still fails to deliver within the newly established deadline, the buyer is entitled to cancel the order by giving written notice to the Seller. However, the buyer can never cancel the order if the delay is due to circumstances listed in clause 8 and those mentioned in section 39(1)(b) of AB 18.
6.3 DELIVERY IN INSTALMENTS Where delivery in instalments has been agreed, the buyer must give written notice waiving the delivery of the remaining deliveries at least 5 days before the expected date of delivery in the event of delay by the Seller. Upon request, the Seller must provide a delivery schedule for the order in cases of delivery in instalments. The buyer is obliged to review the order confirmation and delivery schedule immediately. 6.4 DAY FINES The Seller is not obliged to pay day fines for delay and cannot be required to do so unless an express written agreement has been concluded to that effect. 6.5 LIMITATION OF LIABILITY Claims for damages related to delay are limited to 0.2% of the agreed purchase price (excluding pallets and freight) for the respective delivery per working day, however, a maximum of 7.5% of the agreed purchase price. (excluding pallets and freight)
7. DELAY DUE TO THE BUYER’S CIRCUMSTANCES If delivery cannot take place on the agreed date of delivery due to the buyer’s circumstances, the Seller is entitled to send an invoice as if the delivery had taken place on the originally agreed date of delivery. In such cases, the risk for the goods passes to the buyer on the agreed date of delivery. The buyer is also obliged to cover the Seller’s transport costs with 10% of the purchase price per month or part of a month, up to a maximum of 3 months. If the Seller has stored the order for 3 months, the Seller may consider the order cancelled. In such an event, the Seller may claim storage fees as well as other costs and cancellation charges. However, custom-made products must be fully paid for by the buyer as stated in clause 2.3. and clause 11.
8. FORCE MAJEURE Notwithstanding any conflicting terms in the basis for the agreement, the Seller is not liable to the buyer for failure to fulfil obligations attributable to force majeure. This exemption from liability applies as long as the force majeure situation persists. Force majeure refers to circumstances beyond the Seller’s control, which could not have been reasonably foreseen by the Seller at the time of the formation of the agreement. Examples of force majeure include extraordinary natural events, war, terrorism, fire, flooding, vandalism and labour disputes. As mentioned in clause 7, the Seller also has an extended right to an extension of time if unforeseen delays or complications arise in the production facilities. Such delays or complications in production facilities also relieve the Seller from liability as long as the delay or complication persists.
9. PRODUCT LIABILITY The Seller is only liable for product liability concerning the delivered goods to the extent that such liability is mandatory by law. The buyer must hold the Seller harmless to the extent that the Seller may incur product liability beyond this. Notwithstanding the above, the Seller is not liable for the buyer’s operating loss, loss of profit or any other indirect loss, including loss of production, sales, earnings, time or goodwill, unless caused intentionally, through gross negligence or is mandatory by law.
10. RETURNS Returns can only be made by agreement with the Seller. For returns of goods in full pallets, the invoiced ex works price minus 20% will be credited. A return fee of DKK 1,500 will be charged for returns to Jutland and Funen. For Zealand, the fee is DKK 2,000. Additionally, return transport costs will be charged. The Seller reserves the right to inspect returned goods and will credit those accepted. Custom-made products cannot be returned, see clauses 2.3 and 11.
11. APPLICABLE LAW Trade practice between the parties is governed in all respects by Danish law and jurisdiction.
12. DISPUTES Any disputes regarding these terms of sales and delivery, including interpretation etc., must be handled according to the provisions in Part J of AB 18. However, the Seller may choose freely to have a dispute settled by the ordinary courts in the Seller’s jurisdiction. 13. STORAGE FEES If the buyer fails to collect or accept the goods at the agreed time, the Seller reserves the right to store the goods at the buyer’s expense and risk. Storage fees are calculated per week or part of a week and amount to DKK 200.00 exclusive of VAT. Storage fees will be charged until the goods have been collected or delivered. Any alternative delivery address must be notified to the Seller in writing. In such cases, the Seller reserves the right to adjust the delivery costs.