General delivery conditions NL 92
for deliveries of machines and other mechanical, electrical and electronic equipment between Denmark, Finland, Norway and Sweden and within these countries.
Published 1992 by the main organization Dansk Industri Denmark, Metalliteollisuuden Keskusliitto
– Metalltindustriens Centralförbund r.y., Finland, Teknologibedriftenes Landsforening, Norway, and Sveriges Verkstadindustrier, Sweden.
1. The following general delivery conditions apply if the parties have agreed on them in writing or otherwise. If the delivery conditions apply to a delivery, any deviations must be made by written agreement between the parties.
2. Information in product information and price lists is only binding to the extent that the agreement expressly refers to them.
Drawings and other technical documents
3. All drawings and other technical documents relating to the equipment or its manufacture, which are handed over from one party to the other before or after the conclusion of the agreement, belong to the party that has handed them over. Received drawings, other technical documents or technical information may not be used for anything other than what was the purpose of the transfer without the consent of the other party. Without the consent of the other party, the said equipment may not be copied, reproduced, handed over to or otherwise brought to the knowledge of third parties.
4. The seller must provide the buyer free of charge at the latest with delivery with one or a greater agreed number of copies of drawings and other technical documents which are sufficiently detailed for the buyer to carry out assembly, commissioning, operation and maintenance (including ongoing repairs) of all the equipment parts. However, the seller is not obliged to hand over drawings and documents which form the basis for the production of the equipment or spare parts.
5. If a delivery test has been agreed, the test must be carried out where the equipment is manufactured, unless another place has been agreed. 5. If a delivery test has been agreed, the test must be carried out where the equipment is manufactured, unless another place has been agreed.
6. The seller must give the buyer such notice of a delivery test that the buyer can attend it. A delivery test can be held, even if the buyer is not represented, if he has been notified. The seller must keep a record of the delivery test. The test report must be sent to the buyer. The test report must be considered to give a correct description of the execution of the delivery test and its result, unless the buyer proves otherwise.
7. If the equipment during the delivery test proves not to be in accordance with the contract, the seller must, as soon as possible, ensure that the equipment is brought into accordance with the agreement. At the buyer’s request, a new delivery test must then be carried out. If the defect was insignificant, however, a new delivery sample cannot be requested.
8. Unless other distribution has been agreed, the seller bears all costs of delivery tests, which are carried out where the equipment is manufactured. However, the buyer bears all costs for its representatives, including travel and accommodation expenses, in connection with such delivery tests.
9. If a delivery clause has been agreed, this is interpreted in accordance with the Incoterms applicable at the time of the conclusion of the agreement. If no delivery clause has been agreed, delivery is deemed to have taken place “Ex Works”.
Delivery time. Delay
10. If, instead of a specific delivery time, the parties have specified a period of time within which delivery must take place, this period is considered to run from the conclusion of the agreement.
11. If the seller finds that he cannot deliver on time, or if a delay on his part is considered probable, he must without undue delay give the buyer written notice of this and at the same time indicate the reason for the delay and, as far as possible, the time when delivery is expected to be able to take place. If the seller fails to give the above notice, he must, regardless of the provisions of clauses 13 and 14, compensate the buyer for the additional expenses, this
incurred as a result of the lack of notification.
12. If a delay in delivery is due to any circumstance which according to clause 37 constitutes a reason for exemption from liability or is due to the buyer’s action or omission, the delivery time will be extended to the extent that it is deemed reasonable in the circumstances. The delivery time must be extended, even if the reason for the delay occurs after the expiry of the originally agreed delivery time.
13. If the seller does not deliver the equipment in time, the buyer is entitled to a conventional fine from the day on which delivery should have taken place. The conventional fine amounts to 0.5% for every full week the delay lasts, calculated from the part of the agreed purchase price which covers the part of the equipment that, due to the delay, cannot be put into use as expected. The conventional fine cannot exceed 7.5% of this calculation basis. The conventional fee is due for payment upon written demand from the buyer, however, at the earliest when the equipment is delivered in full or possibly at the time when the buyer cancels the agreement in accordance with point 14. The buyer forfeits his right to a conventional fine if he has not made a written claim to this effect within 6 months after delivery should have taken place.
14. If the buyer is entitled to a maximum conventional fine according to point 13, and the equipment is still not delivered, the buyer can, by written notice to the seller, demand delivery and set a final, reasonable deadline, which cannot be shorter than 1 week. If the seller also does not deliver within the stipulated period, and this is not due to circumstances for which the buyer bears responsibility, the buyer can, by written notice to the seller, cancel the agreement with regard to the part of the equipment that cannot be put into use as expected. If the buyer cancels the agreement in this way, the buyer is also entitled to compensation for the loss he has suffered as a result of the seller’s delay, if the loss exceeds the maximum conventional fine he could have demanded in accordance with point 13. This compensation cannot exceed 7.5% of the part of the agreed purchase price which covers the part of the equipment for which the agreement is terminated. The buyer also has the right, by written notice to the seller, to cancel the agreement, if it is clear that a delay will occur which, according to the rules in point 13, would entitle the buyer to the maximum conventional fine. In the event of such cancellation, the buyer is entitled to both the maximum conventional fine and compensation in accordance with the third paragraph of this clause. Apart from conventional penalty according to clause 13 and rescission with limited compensation according to clause 14, any claim by the buyer in connection with the seller’s delay is excluded. This limitation in the seller’s liability does not apply if the seller has been guilty of gross negligence.
15. If the buyer finds that he will not be able to receive the equipment on the agreed day, or if a delay on his part is considered probable, he must without undue delay give the seller written notice of this and at the same time indicate the reason for the delay and, as far as possible, the time, since reception is expected to take place. If the buyer fails to receive the equipment on the agreed day, he is nevertheless obliged to make any payment conditional on delivery, as if delivery of the equipment in question had taken place. The seller must ensure that the equipment is stored at the buyer’s expense and risk. At the buyer’s request, the seller must insure the equipment at the buyer’s expense.
16. Unless the buyer’s omission specified in point 15 is due to any of the conditions mentioned in point 37, the seller can call on the buyer in writing to receive the equipment within a reasonable time.
If the buyer fails to do this within such a period of time – for reasons for which the seller is not responsible – the seller is entitled, by written notice to the buyer, to terminate the agreement for the ready-to-deliver part of the equipment which, due to the buyer’s failure, is not delivered. The seller is then entitled to compensation for the damage caused by the buyer’s default. The compensation cannot exceed the part of the purchase price that covers the equipment covered by the cancellation.
17. Unless otherwise agreed, one-third of the agreed purchase price is due for payment upon conclusion of the agreement and one-third upon the seller’s written notification that the essential part of the equipment is ready for delivery. The remaining amount is paid upon delivery of the equipment.
18. If the buyer does not pay at the agreed time, the seller is entitled to default interest from the due date at the interest rate that applies according to legislation on interest for late payment in the seller’s country. If the seller’s country is Denmark, the default interest must, however, be the officially determined discount with the addition of 9 percentage points.
19. If the buyer has not paid the amount due after 3 months, the seller is entitled to terminate the agreement by written notice to the buyer and, in addition to default interest, to demand compensation from the buyer for the loss he has suffered. The compensation cannot exceed the agreed purchase price.
Reservation of title
20. The equipment remains the seller’s property until payment has been made in full to the extent that such retention of title is valid under applicable law.
Liability for defects
21. The seller is obliged to remedy all defects due to defects in construction, equipment or manufacturing by repairing or replacing the equipment in accordance with points 22-34 below.
22. The seller’s responsibility only covers defects that appear within one year from the day the equipment was delivered. If the equipment is used more intensively than agreed or can be considered assumed at the conclusion of the agreement, this period will be shortened proportionately.
23. For parts replaced or repaired according to clause 21, the seller assumes the same obligations as for the original equipment for a period of one year. For the other parts of the equipment, the period mentioned in point 22 is only extended by the time the equipment has not been able to be used as a result of the defects mentioned in point 21.
24. The buyer must give written notice of a defect to the seller without undue delay after the defect has become apparent, and in no case later than 2 weeks after the deadline mentioned in point 22 has expired, cf. points 23 and 34. The notice must contain a description of how the defect manifests itself. If there is reason to believe that the defect may lead to a risk of damage, such notification must be given immediately. If the buyer does not notify the seller in writing of a defect within the deadlines specified in this point, the buyer loses his right to make a claim in connection with the defect.
25. After receiving written notice from the buyer in accordance with point 24, the seller must remedy the defect without undue delay. The seller must bear the costs thereof in accordance with the provisions of clauses 21-33. The repair is carried out at the buyer’s premises, unless the seller deems it appropriate that the defective part or possibly the equipment be returned, so that the seller can carry out the repair or replacement at his own premises. Requires disassembly and assembly of part special expertise, the seller is obliged to carry out such disassembly and assembly. If such special expertise is unnecessary, the seller’s obligation regarding the defective part is fulfilled when he has delivered a properly repaired or replaced part to the buyer.
26. If the buyer has made such a notification, as mentioned in point 24, and it turns out that there is no defect for which the seller is responsible, the seller is entitled to compensation for the work and costs the complaint has caused him.
27. If any disassembly and assembly involves interference with anything other than the equipment, the work and the costs thereof are the responsibility of the buyer.
28. Any shipment in connection with repair or replacement must be at the seller’s expense and risk. The buyer must follow the seller’s instructions on the method of shipment.
29. The buyer must bear the additional costs incurred by the seller in remedying deficiencies as a result of the equipment being located at a different location than the destination specified in the agreement or – if such is not specified – the place of delivery.
30. Defective parts that are replaced in accordance with point 21 are made available to the seller and become his property.
31. If the seller does not fulfill his obligations in accordance with point 25 within a reasonable time, the buyer can give the seller a final deadline for fulfillment in writing. If the obligations are not fulfilled before the end of the set period, the buyer can, at his own choice: a) have the necessary repairs carried out and/or have new parts manufactured at the seller’s expense and risk provided that he does this in a reasonable and reasonable manner, or b) demand a proportional discount, but no more than 15% of the agreed purchase price. If the defect is significant, the buyer can instead terminate the agreement by written notification to the seller. The buyer also has the right to cancel the agreement in this way, if the lack of measures as mentioned below a) remains significant. Upon cancellation, the buyer can demand compensation for his loss, but no more than 15% of the agreed purchase price.
32. The seller’s liability does not include defects caused by equipment provided by the buyer or by constructions prescribed or specified by him.
33. The seller’s responsibility only covers defects that arise under the working conditions stipulated in the agreement and during correct use of the equipment. Liability does not include defects due to causes that arose after the risk has passed to the buyer. The liability does not include, for example, defects due to insufficient maintenance, incorrect installation by the buyer, changes made without the written consent of the seller or repairs carried out by the buyer in an incorrect manner. Finally, the liability does not cover normal wear and tear and deterioration.
34. Regardless of the provisions in clauses 21-33, the seller’s liability for defects does not apply to any part of the equipment beyond 2 years from the beginning of the period mentioned in clause 22.
35. The seller has no responsibility for defects beyond what is prescribed in points 21-34. This applies to any loss that the defect may cause, including operating loss, lost profit and other economic consequential losses. This limitation of the seller’s liability does not apply if he has been guilty of gross negligence.
Liability for property damage caused by the equipment (product liability)
36. The buyer must indemnify the seller to the extent that the seller is held liable to third parties for such damage and loss for which the seller is not liable to the buyer according to the second and third paragraphs of this point. The seller is not responsible for damage caused by the equipment:
a) on immovable property or movable property which occurs while the equipment is in the buyer’s possession,
b) on products manufactured by the buyer, or on products in which these are included, or for damage to immovable property or movable property caused by these products as a result of the equipment. In no event shall the seller be liable for operating losses, lost profits or other consequential financial losses.
The aforementioned limitations on the seller’s liability do not apply if he has been guilty of gross negligence.
If a third party makes a claim against one of the parties for liability in accordance with this point, this party must immediately notify the other party.
The seller and the buyer are mutually obliged to be sued in the court or arbitration court that hears claims for damages brought against either of them on the basis of damage or loss allegedly caused by the equipment. However, the mutual relationship between buyer and seller must always be settled by arbitration in accordance with clause 40.
Freedom from liability (force majeure)
37. The following circumstances lead to freedom from liability if they prevent the performance of the agreement or make performance unreasonably burdensome: labor dispute and any other circumstance beyond the control of the parties, such as fire, war, mobilization or military calls of similar magnitude, requisition, seizure, currency restrictions, insurrection and unrest, lack of means of transport, general shortage of goods, restrictions on driving force as well as shortages or delays in deliveries from sub-suppliers due to any of the circumstances mentioned in this point. Circumstances, as mentioned, only result in freedom from liability if their influence on the fulfillment of the agreement could not be foreseen when the agreement was concluded.
38. It is the responsibility of the party who wishes to invoke any reason for exemption from liability, as mentioned in point 37, to notify the other party in writing of its occurrence and termination without delay. In the event of force majeure on the part of the buyer, the latter must cover the costs incurred by the seller to secure and protect the equipment.
39. Irrespective of what otherwise follows from these general delivery conditions, either party may terminate the agreement by written notice to the other party, if fulfillment of the agreement is prevented for more than 6 months by an event, as mentioned in point 37.
Disputes. Choice of law
40. Disputes arising from the agreement and everything related to it cannot be submitted to the court, but must be settled by arbitration in accordance with the legal rules on arbitration that apply in the seller’s country.
41. All legal issues that may arise in connection with the agreement must be judged according to the law of the seller’s country.