General terms and conditions

General terms and conditions of sale for Dynea AS and its subsidiaries

 

These General Terms and Conditions of Sale (“Sales Terms”), supersedes previous Sales Terms by Dynea AS.
The Sales Terms apply to all offers and contracts for the supply of products and related services (“Products”) from Dynea AS and its subsidiaries (“Seller”) to any legal or natural person (“Buyer”).
In case of inconsistencies between these Sales Terms and such written agreements between the Seller and the Buyer whereby the Products are sold, the agreement shall prevail if duly signed by the Seller and the Buyer.

1. Conclusion of contract – offers and orders

1.1   Offers are made on the basis of these Sales Terms and are not binding except when expressly stated in writing.
1.2   When an order is placed, Buyer is deemed to have accepted these Sales Terms. No valid contract will exist until Seller has
          either confirmed the order, or delivered the Products.
1.3   All orders for Products shall be in compliance with Seller’s technical specifications for such Products at the time of the order, 
          unless otherwise explicitly agreed in writing.
1.4   If a contract is concluded providing for successive deliveries, each delivery shall be regarded as an independent transaction.
          Faults and deficiencies in an individual delivery will not entitle Buyer to cancel the entire contract.
1.5   Additions or amendments to the Sales Terms shall only be valid if in writing and duly signed by both Seller and Buyer.

2. Prices and payment terms

2.1   The price charged by Seller shall be the price stated by Seller in its standard price list at the time the order is accepted by 
          Seller, unless a different price has been agreed with Buyer in writing. All prices are quoted according to the Incoterms 2010
          sales clause as stated on the order confirmation or invoice as the case may be, c.f. clause 1.2.
2.2   Any changes, including introduction of new public charges, in production related costs including without limitation changes in
          manufacturing and material costs, transport and fuel costs, exchange rate, customs charges, import and export duties or 
          similar public charges that occur after conclusion of the contract shall entitle Seller to adjust the agreed price with
          one month’s notice.
2.3    Payment shall be made to the bank account stated on the invoice. Unless otherwise agreed, Buyer shall effect payment
           within 14 days after the invoice date. If payment is not received by the due date, Seller shall be entitled to charge statutory
           interest on overdue payment over the outstanding amount(s) from the due date until full payment is received.
2.4    If before or after delivery there is reason to believe that Buyer cannot or will not affect payment when due, Seller may 
           require Buyer to furnish satisfactory security for proper payment. If Buyer fails to do so, Seller may cancel pending deliveries.

3. Terms of delivery and delay

3.1   Delivery shall be made according to the Incoterms 2010 sales clause as stated on the order confirmation or invoice as the
           case may be, c.f. clause 1.2.
3.2   Title to and ownership of Products shall pass to Buyer upon receipt by Supplier of all payments due for the Products
           delivered.
3.3   Unless otherwise agreed, delivery or despatch dates indicated by Seller shall only serve as an estimate and shall not be
           binding for Seller. Additional terms apply when sale is governed by German law (c.f. clause 10), and may also apply in
           separate contracts.
3.4    If Seller finds it impossible to effect delivery at an agreed time, or if Seller considers it probable that delay will occur he
           shall notify Buyer without undue delay. Whenever possible Seller shall at the same time inform Buyer of when he
           expects to complete the delivery.
3.5   If delay is due to circumstances as mentioned in clause 5 the delivery date shall be postponed for the period necessary
           under these circumstances. 
3.6   In the event of material delay, except for material delay pursuant to clause 3.5, Buyer shall be entitled to cancel the contract
           in respect of any deliveries not yet effected. Buyer must invoke this right by notice to Seller without undue delay.
3.7   Buyer may not invoke other remedies for delay against Seller, including liability for compensation.

4. Liability and defects

4.1    All information concerning the Products given by Seller in marketing material, publications etc. is of a non-binding nature.
4.2    Upon receipt of the Products and before starting to use them, Buyer shall check to ensure that the Products are in
           accordance with the agreed quantity and technical specifications, c.f. clause 1.3.
4.3    Buyer must invoke any defects in writing without undue delay, and not later than 7 days after delivery was effected.
4.4    If the Products are defective and Seller is liable, Seller shall at his option either reduce the purchase price proportionately,
           effect the necessary repairs or supplementary delivery, deliver new Products or cancel the contract and credit the invoiced
           value. Seller shall inform Buyer of the method chosen without undue delay. If Seller chooses to effect repair or
           supplementary delivery or to deliver new goods, Buyer may cancel the contract if such deliveries do not take place within a
           reasonable time.
4.5    Seller is not liable for damages or losses as a consequence of defects in Products, unless caused by gross negligence or intent.
           Seller’s liability is further limited to an amount corresponding to the relevant invoice amount and shall never include liability
           for indirect or consequential damages, losses and costs.
4.6    Should Buyer’s customer hold Seller directly liable for any defect, Seller is entitled to recover any amount(s) paid in full from
           Buyer.
4.7    To the extent permitted by law, Seller is not liable towards Buyer for product liability.
4.8    The Buyer is obliged to indemnify and hold the Seller harmless against any and all claims of third parties relating to the
            Products in the event the Buyer has formulated, packaged and/or finished the Product itself in any manner whatsoever.

5. Force majeure

5.1   Seller may terminate, cancel, rescind and/or suspend for any period, and/or reduce the quantities to be supplied under any
            contract without liability for any resulting loss, injury or damage if the performance of its obligations under the contract is in
            anyway adversely affected by (a) any act or default on the part of Buyer or any third part, (b) circumstances beyond Seller’s
            control including without limitation war, revolts or riots, confiscation, governmental intervention, strike, lock-out, sit-in,
            industrial or trade dispute, fire, flood, adverse weather, disease, accident, or shortage of any material, transport, labour,
            electricity or other supply, or (c) any other cause whatsoever which the Seller could not reasonably have been expected to
            prevent. Nothing in this paragraph shall relieve the Buyer of its obligations to make payments due or provide security to the
            Seller.

6. Intellectual Property rights and confidentiality

6.1    Buyer may only use the trade names, logos, patents, copyrights, trademarks and/or any other intellectual property rights of
            Seller if explicitly authorised to do so by Seller and only in strict compliance with any conditions or instructions given by
            Seller. Seller retains all rights of ownership to any intellectual property used by Buyer.
6.2    Buyer is obliged to indemnify and hold Seller harmless against any claims from third parties relating to the alleged
            infringement of intellectual property rights in the event Buyer has formulated, packed and/or finished the products itself
            in any manner whatsoever.
6.3    Commercial and detailed technical information should be kept confidential, unless agreed in writing. The obligation in this
            clause survives the expiration of the Sales Terms.

7. Suspension and termination

7.1    In case the Buyer fails to comply with any of its obligations under the agreement(s) within 30 days after having received a
           written notice of default, which written notice of default is not required in case such failure cannot be remedied, or if a 
           suspension of payment or provisional suspension of payment in respect of the Buyer is applied for or granted, an 
           arrangement is made with the Buyer's creditors, a petition for the Buyer's bankruptcy is filed or the Buyer is declared 
           bankrupt, the Buyer is wound-up or dissolved, the Buyer ceases its operations, control over the Buyer's business is 
           transferred, or if, after the agreement was entered into, the Buyer's circumstances change in such a way that (i) 
           there is good cause to fear that the Buyer will not properly or not timely fulfil its obligations, or (ii) the Seller would
           not have entered into the agreement at all or not under the same conditions, the Seller shall be entitled to terminate 
           the agreement(s) with the Seller in whole or in part with immediate effect or to suspend the performance of its obligations
           under the agreement(s), all such without prejudice to any other rights or remedies the Seller may have and without any 
           compensation being due by the Seller.

8. Governing law and dispute resolution

8.1   These Sales Terms shall be governed by and construed in accordance with the law of the country where the legal entity 
           fulfilling Seller’s obligations under these Sales Terms is located (“Seller’s Country”) except in case the Buyer’s site is located
           in Germany or Austria. If the later is the case the German respective Austran law applies.
8.2   Disputes arising out of or in connection with these Sales Terms shall be settled by arbitration pursuant to the applicable 
           arbitration act of Seller’s Country. The arbitral procedure shall be conducted in English. Seller may, however, enforce 
           claims for payment pursuant to clause 2 before the ordinary courts of Seller’s Country.

9. Miscellaneous

9.1   Buyer may not assign its rights and obligations to a third party without Seller’s prior written consent.
9.2   Unless expressly agreed otherwise, all rights of Seller under these Sales Terms shall also be for the benefit of all other 
           companies belonging to the same group of companies as Seller.


The following clause applies in case German or Austrian law is applicable on the sale of the Products:

10. Retention of Title

10.1   To secure all claims which we may have against the customer on the basis of present and future business relations, we shall
              reserve the right of ownership to the goods that have been supplied until all outstanding balances have been settled.
10.2   Our ownership rights shall extend to the new item produced by processing goods subject to retention of title. The customer
              shall manufacture the new item for us without being entitled to acquire any property rights to it and shall hold it in safe
              custody for us. This shall not give grounds for any claims against us. If the goods under our reserved ownership are
              processed together with goods from other suppliers who have also extended their ownership rights to the new item, 
              we shall acquire joint ownership of this new item together with the other suppliers, this joint ownership not including
              the customer. This right of joint ownership shall apply to the entire value of the new item (including any added value)
              as follows:

10.3        a)   We shall acquire joint ownership rights in the ratio to the invoice value of the goods supplied and which are under
                        reserved ownership as a proportion of the total invoice value of all goods under reserved ownership forming part of the
                        same manufacturing process.
10.3        b)   If there is a remaining part which is not initially affected by any reservation of ownership due to other suppliers not
                        having extended their reservation of ownership to the value added by the customer, our joint ownership share shall
                        be increased by this remaining part. However, if other suppliers have also extended their ownership share to this
                        remaining part, we shall only have a share of this in ratio to the invoice value of the goods under reserved ownership
                        as a part of the total invoice values of the goods of the other suppliers processed with it.

10.4     As a security, the customer, even at this point, shall assign to us any outstanding receivables from the sale of the goods
               under reserved ownership and from present and future supplies made by us together with all subsidiary rights in ratio to
               our ownership share. If the goods are processed within the framework of a work contract, the wage demands shall, 
               even at this point, be assigned to us in ratio to the proportional share of our invoice value for goods under reserved
               ownership, which formed part of the manufacturing process.
10.5     As long as the customer duly fulfils his obligations resulting from the business relationship with us, he shall have the right to
               decide what to do with the goods owned by us in the course of normal business operations and to collect any outstanding
               debts assigned to us himself.

 

 

Updated August 2013