1.1 The below terms of sale and delivery shall be applicable for sale from R&T Stainless A/S (hereinafter called ”Seller”) to the customer (hereinafter called ”Buyer”). This shall also apply to the extent that Buyer during purchase negotiations or in Buyer’s tender material or in Buyer’s confirmation of the purchase has informed Seller of other terms for the purchase, as all such terms shall be considered lapsed upon Seller’s final accession to the purchase.
2. OFFER AND ACCEPT
2.1 Only offers in writing shall for Seller be considered applicable. Offers shall be applicable for 6 weeks. The time of delivery stated in the offer shall only be considered as indicative and the time of delivery shall only be final at such time when it is stated in the order confirmation, cf. however 5.2
3.1 Prices stated in offer, order confirmations and contracts are current prices exclusive of VAT and fees and transport, if any. Seller shall reserve the right to change the price in case of material changes in purchase prices, production costs, wages, raw materials, sub-supplies, exchange rates, freight, bank rates, custom duties, taxes, charges etc. and in case of events covered under 5.2.
4.1 Unless otherwise agreed, payment must be made 14 days after issuing of the invoice. Failure to comply with Seller’s terms of payment shall be considered as material non-compliance, which entitles the Seller to stop any further deliveries and to ask for immediate payment of all outstanding amounts, matured as well as non-matured.
4.2 If Buyer fails to pay outstanding amounts in due time, Seller shall from the day of maturity be entitled to add 2% default interest per each new month after the day of maturity and to collect charge added to the reminder as well as debt collection fees in accordance with Danish legislation.
4.3 The Buyer is not entitled to retain any part of the invoiced amount or to deduct any part of the invoiced amount as set-off for any counterclaims against the Seller, which have not in writing been approved and accepted by the Seller.
4.4 Regardless of whether any other terms of payment may previously have been agreed to with Seller, Seller is, in case of Buyer’s delayed payment of the purchase sum, entitled to condition future deliveries on cash payment or Buyer’s appropriate security.
4.5 Regardless of the above, Seller shall reserve the right prior to payment to ask for guarantee for payment or payment in advance of delivery.
5. DELIVERY AND TIME OF DELIVERY
5.1 Unless different delivery stipulations have been agreed to, delivery shall take place ex works from Seller’s address at Formervangen 7-9, DK-2600 Glostrup, Denmark in standard packaging in accordance with current and applicable INCOTERMS 2000 “ex works”. Shipment takes place at Buyer’s risk and account.
If Buyer requests particular protection or packaging, such protection or packaging shall only be delivered in accordance with previous agreement with Seller and Buyer shall pay all expenses in this connection.
5.2 The time of delivery stated in the offer shall only be perceived as instructive and the time of delivery shall only be final when stated in the order confirmation. The time of delivery in the order confirmation has been set by Seller as the time, which in his best judgement concurs with the circumstances present at the time of forwarding of the order confirmation.
5.3 Buyer is not entitled to postpone the agreed time of delivery without previous agreement with Seller.
5.4 In case of delay, the Buyer must complain immediately. After this point in time, Buyer can only annul the deal if Seller fails to deliver within 15 working days after written claim from Seller to Buyer. Buyer can under no circumstances claim compensation for delay.
5.5 If Buyer at the time of transportation has not determined the means of shipment, Seller can arrange usual safe transportation at the account of the Buyer. Shipment does, however, always take place at Buyer’s risk and account.
5.5.1 When a decision has been made about delivery to Buyer’s location or any other location as advised by the Buyer, the goods must be delivered as close to the place of use as the lorry can possible come without danger of getting stuck or damaging other vehicles or surroundings or as close as the driver sees fit.
If Buyer wishes to have the goods delivered at different location than Buyer’s address, Buyer bears the responsibility for vandalism, theft or damage after such time, when the carrier has delivered the goods at the assigned location. In the relationship between Buyer and Seller, delivery shall take place and risk of transfer shall pass when the Seller delivers the goods to the carrier.
The carrier, who transports the goods, shall be informed immediately in case of visible damage and missing parcels and a note shall be entered on the consignment note. Otherwise, Buyer’s right to complain to the carrier shall lapse.
5.5.2 Expenses for waiting time, if any, in regard with unloading at Buyer’s location or any other location as advised by the Buyer shall be paid for by the Buyer and Buyer must cover any expenses that follow as a consequence of not being able to receive the goods at the agreed time of delivery.
5.6 Buyer must pay any additional expenses in connection with non-agreed part delivery.
6.1 Seller reserves the right of ownership of the sold goods until such time when the entire purchase sum and any expenses in connection with delivery of the sold items have been paid by the Buyer. Upon payment with cheque or bill, payment shall not be considered final before full payment has taken place and the bank’s opposition deadline has expired. The reservation of ownership shall not affect the passing of the risk to Buyer upon delivery, cf. 5.1
7. FORCE MAJEURE
7.1 Seller is not responsible for delay caused by force majeure, including but not limited to industrial action and any other circumstance, over which the parties have no control such as fire, war, confiscation, currency restrictions, riot and disturbances, lack of means of transport, ordinary shortage of supplies, delay, discarding of larger consignments, restriction of drive power as well as insufficient or missing deliveries from sub supplier, regardless of the cause.
7.2 In such cases, timely delivery shall be postponed until the event is no longer present, however no more than 12 weeks. After 12 weeks, both parties shall be entitled to annul the agreement without being accused of non-performance.
8. WARRANTY AND DEFECTS
8.1 Seller issues 12 months working and material defect guarantee on all products manufactured by Seller from the date of the invoice to the extent that the defects do not originate from fair wear. The guarantee shall only be applicable insofar that the product has been mounted in accordance with Seller’s mounting instructions and generally recognized practice in accordance with EN1176 and EN1177 and under the precondition of correct maintenance, cf.
8.2 It rests with the Buyer to ensure that he has received required mounting instructions. The guarantee shall, however, not cover defects and flaws caused by fair wear and tear, cosmetic errors, wrongful or unusual operation, vandalism, overload, insufficient maintenance and attempts of repair, adjustment and alterations that have not been performed by the Seller or with Seller’s written consent.
8.3 It rests with the Buyer immediately upon delivery to perform ordinary inspection of the delivery, including checking the quantity and whether there are visible flaws and deficiencies. Complaints of insufficient or non-contractual delivery, which Buyer registers or should have registered during acceptance inspection must be forwarded in writing immediately after receipt of the goods and under all circumstances no later than 6 days after receipt. Complaints must include a clear description of the nature of the defect and pictures, if any, must be enclosed as evidence.
8.4 The guarantee is subject to the goods immediately and no later than 6 days after such time when the defect was or should have been registered being forwarded carriage paid to Seller, please note, however that claims in this connection must be raised no later than 12 months after the date of delivery.
8.5 Defects that should have been discovered in connection with Buyer’s duty of inspection cannot be pleaded after expiry of the above deadlines.
8.6 Seller decides whether defects on the sold items shall be repaired, the goods redelivered or the purchase sum shall be reimbursed. Regardless of the place of delivery agreed in the order confirmation, redelivery, if any, shall take place ex works from Seller’s address at Formervangen 7-9, DK-2600 Glostrup, Danmark, cf. terms in. 5.1. Buyer shall be responsible for and pay for all expenses in connection with transport, replacement and installation of defective/insufficient goods.
9. INSTALLATION, INSPECTION, MAINTENANCE AND OPERATION
9.1 Buyer shall perform and be responsible for correct installation, inspection, maintenance and operation of the goods, including compliance with EN 1176 and EN 1177.
9.2 In addition, Buyer is required to comply with the following maintenance procedures of the goods:
Cold welding between nut and bolt/threaded bar is a phenomenon that may occur. To prevent this, Seller recommends the use of a wax treated (lock) nut.
The wax treatment helps to reduce the risk friction and thus the risk of the nut getting stuck. Wax treated lock nuts can be purchased from most bolt suppliers.
MAINTENANCE CHECK LIST
Purpose: To avoid and/or limit all types of accidents/injuries on children, adults and items/objects in connection with use of Seller’s products.
9.2.1 All new products – before first use
All new components must be thoroughly checked for sources of injuries of any kind, such as but not limited to:
Sharp edges, weak or insufficient weldings, securing of bolts and nuts, checking for ruptures in materials or other visible defects
9.2.2 Monthly or in case of heavy use every 15th day.
Products are checked in accordance with EN1176
Check for wear and tear, damage, vandalism and check for sufficient lubricants (oil, grease).
Check all parts from the exterior, open the parts where assembled with bolts and nuts.
Note! Do NOT open parts that have been assembled with bolts and nuts and secured with a welding. In that case, check the product visually and manually move the item up and down and to the left and right and push and pull the product as well.
If excessive or restricted clearance/movement is registered in the products due to wear and tear, damage and/or vandalism, the defective part must immediately be replaced with a new and original part.
If the product is equipped with a plastic casing, the casing must be removed and lubricants added, it is important that the lubricant enters everywhere. Mount the casing after lubrication.
If the casings have disappeared, new casings can be ordered from the supplier.
All swings and movable parts must be lubricated using a brush or grease spray.
9.2.3 Check every morning before use
On all swings and movable parts, which are one-point-fixed/mounted, the fixing bolt must always be securely fastened, whereby the load is transferred to the body of the movable part instead of to the bottom of the fixing bolt. Check for ruptures on the bottom of the fixing bolt, if found to be loose.
Products with ruptures or weak/broken weldings must be repaired/replaced immediately.
In case of jarring sounds from movable parts, try to add a few drops of oil.
All rubber parts. Check for wear and tear, damage and vandalism. All rubber coated metal parts or hard materials or similar must be kept to the same standard as when the tool was purchased and installed for first use.
In case of flaws and deficiencies, the product must be replaced with new and original parts immediately.
All components: Check for wear and tear, damage, vandalism and check for sufficient lubrication.
All shackles, bolts and nuts must be checked and tightened.
Equipment that is hung up or mounted into each other or are movable must be checked manually by moving up and down, from right to left and the defective part is replaced with a new and original part. Defective parts are removed from the playground BEFORE the equipment is taken into use again.
9.2.4 All claims must be forwarded in writing and include a copy of written log book/inspection plan (in accordance with DS/EN 1176) with dates for performed work as described in the above check list.
If such an inspection plan cannot be produced, the Seller reserves the right to reject all claims.
9.3 Defective components will be replaced with new components or repaired within the warranty period, cf. 8.5. Other claims will not be accepted.
9.4 Buyer is encouraged to ensure that Buyer’s customers are completely familiar with the information in 9 about correct installation, inspection, maintenance and operation of the playground equipment as well as the playground base.
10. LIMITATION OF LIABILITY
10.1 In the absence of a previous written agreement with Seller, Buyer and/or his assignee can neither directly nor indirectly sell and/or resell/export the products to Canada and the USA and Seller can never be held responsible in this connection. Buyer must exempt Seller of any responsibility, loss and claims for damages or compensation in case of violation of this term.
10.2 In connection with claims concerning Seller’s compliance or non-compliance of his obligations, Buyer is entitled to compensation for direct loss with the following limitations:
10.2.1 Seller’s liability in damages is limited to direct loss/damage and is – regardless of cause and nature of the claim – limited to the amount invoiced for the relevant service or item, which caused the damage/loss or is the cause of or directly linked to the claim.
10.2.2 Seller is under no circumstances liable to pay damages to Buyer for operating loss, loss of profit, day fines, loss of savings or any other indirect loss or consequential damage that can be attributed to use of the sold item or lack of opportunity to use this, regardless of whether Seller has been informed about such potential claims.
10.2.3 Seller cannot be held responsible for loss, expenses or costs related to buying, reordering, repairing, replacing, removing or similar precautions in regard to defective product or products, where Seller’s product has become a component. Seller shall never be held responsible in Buyer’s legal matter towards third parties.
10.2.4 Seller is not responsible for damage on real property or personal property, which occurs while the products are in Buyer’s possession. Nor shall Seller be held responsible for damage on products that have been manufactured by Buyer or products, where such products have become a component.
11. RETURNED GOODS
11.1 Buyer is not entitled to return goods and deliveries from Seller without previous written agreement. If agreement has been made to return goods, the returned goods shall normally be credited with at 25% deduction of the sales price exclusive of VAT with carriage paid delivery to Seller’s storage or other location in Denmark as advised by Seller.
11.2 Special items, fabricated items or display items cannot be returned.
12. PRODUCT LIABILITY
12.1 To the extent that nothing else follows from invariable rules, Buyer shall be responsible for limiting all direct/indirect claims from Buyer or other direct/indirect claims from third parties against Seller to the liability as described in Seller’s liability insurance. Upon request, Seller shall forward a copy of the policy.
12.2 Buyer must hold Seller indemnified to the extent that Seller is met with a claim from a third party in addition to the consequences of 12.1 as well as for such damage or loss, for which Seller in accordance with 10 has no responsibility towards Buyer.
12.3 If Seller is sued by third parties in connection with product liability, Buyer shall accept to limit Seller’s responsibility to the terms of Seller’s product liability insurance.
12.4 Seller shall never be held responsible for operating loss, loss of profit or any other financial consequential loss. If a third party presents a claim towards Buyer in regard to liability for damages under this item, Buyer must immediately inform Seller about this.
13. DRAWINGS AND DESCRIPTIONS
13.1 All specifications and information about weight, dimension, capacity, price, technical and other data found in catalogues, data sheets, adds, pictures and price list shall be considered approximate and guiding. Such information shall therefore only be binding to the extent that it has been expressly stated in the order or if specific reference is made to it.
13.2 If constructions or specifications etc. for products sold by Seller are altered prior to time of delivery, Seller is entitled to deliver the product with the at the time applicable construction and specifications etc., to the extent that the product – according to objective assessment – has not suffered from impairment. The same shall apply in regard to the appearance of the product, including colour.
13.3 All forwarded drawings and descriptions shall remain the property of the Seller and cannot without authorization be copied, reproduced, surrendered or in any other way be brought to the attention of third parties.
If Buyer – for the purpose of completing the project – needs drawings and documentation, the parties can through previous written agreement agree that Seller hands out the drawings and documentation that Buyer requires to install, start up, run and maintain the delivery. Without Seller’s consent, such information cannot be used for any other purpose than the purpose intended upon handover. Seller does, however, require that such information remains confidential.
13.4 Seller reserves the right to pass on any drawings and technical specifications given from Buyer to Seller to sub suppliers to the extent that this is necessary to perform the delivery.
14.1 Any dispute between the parties that cannot be settled by negotiation, shall be submitted to Copenhagen City Court and be subject to Danish court and law.
Should one or more of the stipulations of these terms of sale and delivery at a later point in time be deemed invalid, this shall not affect the validity of the agreement and the remaining stipulations, which shall remain in force and any invalid stipulations shall be interpreted in detail based on the purpose of the agreement and the invalid stipulation which shall remain in force and any invalid stipulations shall be interpreted in detail based on the purpose of the agreement and the invalid stipulation.