Prime Ocean A/S general terms of sale and delivery
§ 1. General Terms:
- Any Sales Contract entered into with Prime Ocean A/S shall be subject to the below General Terms of Sale and Delivery unless otherwise expressly agreed in writing with Prime Ocean A/S. Any agreements to derogate from the present Terms of Sale and Delivery shall be entered into in writing and shall only apply to the Contract in question.
- Consequently, any General Terms of Purchasing drawn up by the Buyer for example stated in quotation requisitions, etc., shall not be binding on Prime Ocean A/S. This shall apply irrespective of whether such terms have been expressly rejected by Prime Ocean A/S.
- The present Terms of Sale and Delivery shall thus always take precedence over any conflicting terms of the Buyer irrespective of when such terms have been received by Prime Ocean A/S unless agreements to derogate from the present Terms of Sale and Delivery have been entered into in accordance with Sub-clause 1.1. Consequently, delivery of the goods sold without a concurrent complaint about any deviating Terms of Purchasing drawn up by the Buyer cannot be construed as implied acceptance on the part of Prime Ocean A/S
§2 Quotations and pro forma invoices:
- Any information about prices and delivery provided by Prime Ocean A/S shall merely be regarded as an invitation to the addressee to place an order, and shall consequently be subject to the goods being unsold by Prime Ocean A/S.
- When Prime Ocean A/S has accepted an order, a pro forma invoice will be sent by fax and/or invoice. Only an order from a Buyer which Prime Ocean AYs has thus accepted in writing by pro forma invoices/invoices shall be binding on Prime Ocean A/S.
- Any orally agreed changes to specifications in the pro forma invoice/invoice must be confirmed in writing by Prime Ocean A/S in order to be valid.
- Due to the goods being perishables, the Buyer shall, in accordance with the pro forma invoices/invoices sent by Prime Ocean A/S, be under an obligation to complain immediately if the content of the pro forma invoice/invoice as not in accordance with what has been agreed.
- The goods sold will be delivered as described in the pro forma invoice/invoice.
- If any delivery clauses have been laid down, such clauses shall be interpreted in accordance with INCOTERMS definitions.
- The time of delivery stated in the pro forma invoice/invoice is approximate, and Prime Ocean A/S shall be entitled to make delivery after the stated date.
- Prime Ocean A/S shall be entitled to terminate the Contract in the event of force majeure or if it becomes impossible or particularly onerous to meet the time of delivery as a result of circumstances beyond the control of Prime Ocean A/S
- The Buyer shall be under an obligation to accept delays in delivery of frozen fish of up to fourteen (14) days from the agreed time of delivery. In the event of any delay which exceeds fourteen (14) days, the Buyer shall be entitled to terminate the Contract entered into.
- Prime Ocean A/S will not under any circumstance whatsoever pay compensation as a result of any operating loss, loss of profits or other indirect costs incurred due to a delay in delivery.
§ 4. Liability for defects:
- As the goods involved are perishables, the Buyer shall be under an obligation to inspect the goods thoroughly immediately upon delivery.
- Upon delivery of fresh fish the Buyer shall be under obligation immediately, and not later than four (4) hours after delivery of the goods, to complain in writing to Prime Ocean A/S on fax no. +45 (98) 48 48 05.
In connection with delivery of frozen fish, the Buyer shall be under an obligation immediately, and not later than four (4) hours after delivery of the goods, to complain in writing to Prime Ocean A/S on fax. No. +45 (98) 48 48 05 in the event of any defects in the fish, its packaging or any other defects or deficiencies which may ascertained immediately. If the Buyer wants to claim defects in the frozen fish which cannot be ascertained immediately, the Buyer shall be under an obligation to complain in writing to Prime Ocean A/S on fax no. +45 (98) 48 48 05 not later than fourteen (14) days after delivery of the goods.
- If the Buyer fails to complain in due time in accordance with the above procedure, the Buyer shall lose any right to make a claim for breach of contract against Prime Ocean A/S.
- Any statement of size, weight and quantity in the pro forma invoice/invoice shall be approximate statements, and in the event of deviations of 10% or less, the Buyer shall not be entitled to claim breach of contract, but may, in such case, demand that Prime Ocean A/S issue a credit note equivalent to the quantity of goods by which the delivery is short.
- The Buyer submits a complain in accordance with §4.2., Prime Ocean A/S may, if the goods are detective, freely choose to credit the Buyer for the defective goods on the basis of the invoiced value or to grant the Buyer a pro rata reduction in the sales price also on the basis of the invoiced value or in the event of frozen fish, to replace the goods within a reasonable period of time by a replacement delivery of new goods to the Buyer.
- Prime Ocean A/S shall never have any liability if the Buyer fails to store the goods properly and correctly after delivery or if the Buyer submits a complaint after the Buyer has fully or partly processed the goods received.
- Unless otherwise agreed, payment shall be made in accordance with what has been agreed in the pro forma invoice/invoice.
- If payment is made after the expiry of the time for payment stated in the invoice, interest shall be charged at 1,5 % for every month or part thereof in accordance with what has been specified in the invoice.
§6. Retention of title:
- Any delivery to Germany shall be made on the basis of the following further described retention of title. The retention of title shall also apply to all future deliveries without this necessarily being expressly stated for each individual delivery.
- Prime Ocean A/S shall retain the title to all goods delivered – also in the future – until the Buyer has made full and final payment of all outstanding accounts in the business relations between Prime Ocean A/S and the Buyer.
- The Buyer shall be entitled to resell the goods covered by the retention of title as part of the ordinary operations of the business. The Buyer shall, with immediate effect, assign all claims which he may acquire in connection with resale to a customer or a third party equivalent to Prime Ocean A/S´s outstanding account incl. VAT irrespective of whether the goods covered by the retention of title have been resold before or after processing. Prime Ocean A/S accepts this assignment. The Buyer shall still be authorized to collect the claim from his customer. Prime Ocean A/S reserves the right to revoke this power if the Buyer fails to meet his payment obligations. In such case, the Buyer shall be under an obligation to notify Prime Ocean A/S of the claims assigned to Prime Ocean A/S and of the debtors involved, to provide all necessary information regarding collection, to make all required documentation for the enforcement available and to notify his customer of the assignment.
- Any processing of the goods covered by the retention of title shall be made by the Buyer for Prime Ocean A/S without Prime Ocean A/S incurring obligations of any kind whatsoever in this connection. In connection with any processing, combining, joining or mixing of the goods covered by the retention of title and other goods which do not belong to Prime Ocean A/S, Prime Ocean A/S shall acquire joint ownership of the new goods equivalent to the ratio between the invoiced value of the goods covered by the retention of title and the invoiced value of the other goods. The Buyer shall store the new goods free of charge for Prime Ocean A/S
- As security for Prime Ocean A/S´s claims against the Buyer, the Buyer shall also assign to Prime Ocean A/S any such claims which he acquires against a third party in connection with the goods covered by the retention of title being installed or stored in a real property. Prime Ocean A/S accepts such assignment.
- In the event of breach of contract on the part of the Buyer, Prime Ocean A/S shall be entitled to repossess the goods covered by the retention of title. The Buyer shall be under an obligation to surrender the goods in question to Prime Ocean A/S. Such repossession of the goods shall not mean that the Contract is terminated unless Prime Ocean A/S states this in writing.
- The Buyer shall under an obligation for his own account to keep the goods covered by the retention of title adequately insured against theft, destruction, fire and water damage.
- Prime Ocean A/S shall be under an obligation to release the security held by Prime Ocean A/S at the request of the Buyer when the value hereof exceeds the secured claims by more than 20%
§7. Product liability:
- Prime Ocean A/S shall have product liability in accordance with existing national Danish law.
- However, Prime Ocean A/S shall not in any case whatsoever assume liability for any operation loss, loss of time, loss of profits or other indirect loss resulting from a product liability claim.
§8. Limitations of liability:
- Prime Ocean A/S shall not be liable for defects which have been caused after the Buyer has taken delivery of the goods.
- Prime Ocean A/S shall not in any case pay compensation for any operating loss, loss of profits/profit margins or any other indirect loss. Consequently, no claim may be brought against Prime Ocean A/S for compensation for any expenses incurred in connection with the disposal of the goods delivered as well as any production standstill until new goods have been delivered, etc.
- Prime Ocean A/S shall never be liable for conditions which are due to changes beyond the control of Prime Ocean A/S irrespective of whether such changes originate from Prime Ocean A/S or a sub-supplier or carrier chosen by Prime Ocean A/S. Nor shall Prime Ocean A/S be liable for any non-performance of the agreement where such non-performance is due to force majeure or where such non-performance is due to conditions which will make the performance of the Contract impossible or particularly onerous for Prime Ocean A/S.
- Prime Ocean A/S´s liability for defects and delay cannot in any case whatsoever exceed the invoiced value excl. VAT of goods for which a legitimate complaint is made.
- In the event that the Buyer wants to claim a delay in delivery the Buyer must reserved the right to do so as soon as possible and at the latest when the Buyer becomes aware that delivery of the goods is in delay. If the Buyer fails to notify Prime Ocean A/S hereof, the right to make a claim regarding a delay in delivery shall be forfeited.
- Apart from the provisions stated under §§4 and 9.1., all claims against Prime Ocean A/S shall be barred by limitation if they have not been made in writing not later than one (1) month from the time of delivery agreed in the pro forma invoice/invoice.
§10. Venue and applicable law:
- Any dispute arising out of or in connection with the pro forma invoice/invoice entered into shall be settled in accordance with the general rules of national Danish law, including the Danish Sale of Goods Act.
- Any dispute shall be settled by the general courts of law at the City Court in Viborg (Byretten I Viborg) unless the dispute meets the existing financial requirements in force from time to time in accordance with which the case may be brought before the Danish Western High Court (Vestre Landsret) in Viborg.
- Any disagreements about the interpretation and handling of the retention of title in accordance with the present Terms of Sale and Delivery shall be settled in accordance with German law.
Prime Ocean A/S shall, however, be entitled to choose Danish law as applicable law in connection with a concrete dispute.
The United Nations´ Convention no. 733 of 7 December 1988 on Contracts for the International Sale of Goods shall, however, not apply.