In this document the following words shall have the following meanings:
2.1 These Terms and Conditions shall apply to all contracts for the sale of Goods by MPAC to the Customer to the exclusion of all other terms and conditions referred to, offered or relied on by the Customer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Customer, unless the Customer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by MPAC in writing.
2.2 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by MPAC.
3 PRICE AND PAYMENT
3.1 The price shall be that in MPAC’s current List Price, or such other price as the parties may agree in writing. The price is exclusive of VAT or any other applicable costs. Customers will be supplied on an ex-works basis.
3.2 MPAC ApS only offer credit on goods and services after individual customer credit evaluation/rating.
3.3 MPAC shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 2.00% per months and a fee of €15,00 per payment reminder.
3.4 If payment of the price or any part thereof is not made by the due date, MPAC shall be entitled to:
3.4.1 require payment in advance of delivery in relation to any Goods not previously delivered;
3.4.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Customer for non-delivery or any delay in delivery;
3.4.3 terminate the contract.
3.5 Prices other than “List Price” may be agreed from time to time between MPAC and Customer and will be confirmed in writing by MPAC to the Customer.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Customer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Customer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Customer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
6.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Customer on the date specified by MPAC. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 The date of delivery specified by MPAC is an estimate only. Time for delivery shall not be of the essence of the contract.
Risk in the Goods shall pass to the Customer at the moment the Goods are dispatched from MPAC`s premises. Where the Customer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
8 RETENTION OF TITLE
The risk in the Goods shall pass from MPAC to the Customer upon delivery of such goods to the Customer. However, notwithstanding delivery and the passing of risk in the Goods, title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Customer until MPAC has received in cash or cleared funds payment in full for all goods delivered to the Customer under this and all other contracts between MPAC and the Customer for which the full price of the goods there under has not been paid. Payment of the full price of the goods shall include the amount of any interest or other sum payable under the terms of this and all other contracts between MPAC and the Customer under which the Goods were delivered.
9.1 Where the Goods have been manufactured by MPAC and are found to be defective, MPAC shall repair, or in its sole discretion, replace defective Goods, subject to the following conditions:
9.1.1 the Customer notifying MPAC in writing within 7 days of receipt of the Goods;
9.1.2 the defect being due to the faulty design, materials or workmanship of MPAC.
9.2 Any Goods to be repaired or replaced shall be returned to MPAC at the Customer’s expense, if so requested by MPAC.
9.3 Where the Goods have been manufactured and supplied to MPAC by a third party, any warranty granted to MPAC in respect of the Goods shall be passed on to the Customer.
9.4 MPAC shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
9.5 The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.
10.1 No liability of any nature shall be incurred or accepted by MPAC in respect of any representation made by MPAC, or on its behalf, to the Customer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:
10.1.1 the correspondence of the Goods with any description;
10.1.2 the quality of the Goods; or
10.1.3 the fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by MPAC to the Customer in respect of any express term of this contract where such term relates in any way to:
10.2.1 the correspondence of the Goods with any description;
10.2.2 the quality of the Goods; or
10.2.3 the fitness of the Goods for any purpose whatsoever.
10.3 All implied terms, conditions or warranties as to the correspondence of the Goods to any description or the satisfactory quality of the Goods or the fitness of the Goods for any purpose whatsoever (whether made known to MPAC or not) are hereby excluded from the contract.
11 LIMITATION OF LIABILITY
11.1 Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, MPAC shall be liable for all loss or damage suffered by the Customer but in an amount not exceeding the contract price.
11.2 Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of MPAC for death or personal injury as a result of MPAC’s negligence or that of its employees or agents.
12 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of MPAC, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in MPAC by the execution of appropriate instruments or the making of agreements with third parties.
13 FORCE MAJEURE
MPAC shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and MPAC shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as MPAC considers unreasonable, it may, without liability on its part, terminate the contract.
14 RELATIONSHIP OF PARTIES
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
15 ASSIGNMENT AND SUB-CONTRACTING
The contract between the Customer and MPAC for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Customer, without the prior written consent of MPAC.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
18 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the law of Denmark and the parties hereby submit to the exclusive jurisdiction of the Danish courts.