General conditions for the sale and delivery of Energy Cool systems

General information

These terms of sale and delivery apply to all deliveries of products and services from Energy Cool Global ApS (hereinafter "Seller") and its affiliated subsidiaries in the EU to business customers (B2B), unless otherwise agreed in writing.

Company information:

• Company name: Energy Cool Global ApS
• CVR-number: 45291189
• Address: Prins Georgs Kvarter 13, 7000 Fredericia, Danmark
• Telephone: +45 70262529
• E-mail: info@energy-cool.com 
• Homepage: https://energy-cool.com/

 

Jurisdiction and applicable law:
All agreements are concluded in accordance with Danish law. Any dispute arising in connection with these terms of sale and delivery shall be settled by the Danish courts unless otherwise agreed in writing.

§ 1 Scope of application 

PCS. 1. These terms and conditions of sale and delivery ("Terms") apply to all offers, sales and deliveries of products and services from the Seller.

PCS. 2. The Terms apply to trade with business customers (B2B) and apply to all agreements between the Seller and the Buyer, unless otherwise agreed in writing. The Terms apply regardless of the Buyer's geographical location, unless national legal requirements in a specific EU country require separate terms and conditions.

PCS. 3. In the event of any inconsistencies between these Terms and Conditions and the Buyer's general terms and conditions of purchase, these Terms and Conditions shall prevail, unless otherwise expressly agreed in writing.

PCS. 4. The Seller reserves the right to change the Terms and Conditions without prior notice. Changes will apply to all orders placed after the updated version has been published on the Seller's website or announced in another way.

PCS. 5. If individual provisions of these Terms and Conditions are declared invalid or unenforceable, this shall not affect the validity of the remaining provisions, which shall remain in full force and effect.

§ 2 Special definitions

PCS. 1. Intermediate sale means that the Seller, after having made an offer to the Buyer, sells the offered product or system to a third party before the Buyer's acceptance has reached the Seller.

PCS. 2. Commissioning time means the time at which the system is delivered, installed and either put into use by the Buyer or declared ready for use by the Buyer.

PCS. 3. Technical documentation means any form of technical information, drawings, specifications, images and other material that the Seller makes available to the Buyer, regardless of whether this material is delivered in physical, electronic or other form.

§ 3 Offer

PCS. 1. Offers and intermediate sales
 All offers made by the seller are non-binding and valid for 30 days from the date of the offer, unless otherwise agreed in writing. The offer automatically lapses after this period, unless the Buyer has accepted it in writing within the deadline.
The seller reserves the right to sell the offered product or plant to another party as long as the Buyer's written acceptance has not reached the seller (see clause 2.1 on intermediate sales).

PCS. 1.1. Offer prices are based on the prevailing raw material prices, exchange rates and other costs at the time of the offer. The Seller reserves the right to adjust the prices in the event of significant changes in these factors until acceptance of the offer.

PCS. 2. Order Confirmation
A binding agreement between Seller and Buyer shall not be deemed to have been concluded until Seller has sent a written order confirmation. Buyer shall be obliged to review the order confirmation and immediately notify Seller of any discrepancies. Otherwise, the order confirmation shall be deemed to have been accepted.

PCS. 3. Changes and Cancellations
Any changes or cancellations to a confirmed order require written acceptance from the Seller. Such changes may result in adjustments to price, delivery time and other terms.

PCS. 3.1. The Seller reserves the right to cancel or amend an offer in the event of obvious errors in price, calculation or content.

PCS. 3.2. Any amendment to an offer by the Customer shall be considered a new request and shall require a new written approval from the Seller.

PCS. 4. If new laws or regulations come into force that affect the Seller's ability to deliver in accordance with the offer, the Seller reserves the right to cancel or revise the offer.

PCS. 5. Unless otherwise agreed in writing, transport and delivery costs are not included in the offer price.

PCS. 5.1. Packaging and transport costs are not included in the offer price.

PCS. 6. Customs, transport and local taxes are not included in the offer price, unless otherwise specifically stated in the offer.

§ 4 Specifications and technical documentation

PCS. 1. All statements and information about weight, dimensions, capacities, prices, as well as technical and other data in the seller's marketing material, including in catalogues, prospectuses, circulars, advertisements, images and price lists, etc., are for guidance only.

PCS. 2. All technical documentation that is entrusted to the buyer remains the property of the seller.

PCS. 3. Technical documentation may not be used for anything other than the purpose for which it was transferred without the seller's consent and may not be copied, reproduced, handed over to or brought to the knowledge of third parties without the seller's written consent.

PCS. 4. If the buyer does not accept the seller's offer, technical documentation that may have reached the buyer must be returned to the seller.

§ 5 Design changes

PCS. 1. The seller reserves the right to make such changes in construction without prior notice to the buyer: Choice of materials, execution, etc., as the seller may find necessary. The seller is, however, obliged to ensure that the changes do not cause deterioration in the quality, capacity and essential functional properties of the goods sold.

PCS 2. Changes made do not entitle the buyer to any form of compensation.

§ 6 Transport costs and transfer of risk

PCS. 1. Unless otherwise agreed in writing, delivery of products and services from the seller shall be in accordance with Incoterms 2020 EXW (Ex Works). The buyer shall therefore bear all costs and risks associated with transport from the seller's location.

PCS. 2. The stated delivery time is indicative, unless otherwise agreed in writing. The seller will endeavour to meet the agreed delivery time, but is not liable for delays caused by:

• Force majeure (see clause 12)
• Delays from subcontractors
• The buyer's failure to provide necessary information or materials
• Other circumstances beyond the seller's control

The Seller shall inform the Buyer of any delays as soon as possible.

PCS. 3 Transfer of Risk and Transport
The sale is generally made ex works (EXW – Ex Works). The Buyer therefore bears all costs and risks associated with the transport of the purchased goods from the Seller's location. The Buyer is obliged to take out transport insurance in accordance with Section 6.

PCS. 3.1 If the Seller undertakes to assemble the purchased goods, the transport costs are included in the offer. However, the risk associated with the transport still passes to the Buyer from the Seller's location (ex works), and the Buyer is obliged to take out transport insurance, cf. Section 6.

PCS. 3.2 The provisions in 3 and 3.1 also apply if delivery is made directly from the Seller's subcontractor.

PCS. 4. Partial and part deliveries

The Seller reserves the right to make partial deliveries, unless otherwise agreed. Each partial delivery is invoiced separately and must be paid in accordance with the agreed payment terms.

PCS. 5. Buyer's obligation to accept

The Buyer is obliged to accept the delivery upon delivery. If the Buyer fails to accept the delivery at the agreed time, the Seller is entitled to store the products at the Buyer's expense and risk and to invoice the delivery as completed.

PCS. 6. Inspection upon receipt

The Buyer must immediately inspect the products upon receipt for visible damage or defects. Any complaints must be submitted in writing to the Seller within 14 days of receipt, otherwise the delivery is deemed accepted.

§ 7 Invoicing and payment

PCS. 1. Invoicing from the seller will, unless otherwise agreed in writing, be as follows: 35% upon the seller's order confirmation, 35% upon dispatch of the item of sale, or in the event that the item of sale is delivered over several times, of the main parts, from the seller's company, or when these have been reported ready for dispatch, and 30% within 8 days of the commissioning date.

PCS. 2. The payment terms are 14 days net after the invoice date, unless otherwise agreed in writing.

PCS. 3. If the buyer does not pay on time, the seller is entitled to calculate default interest from the due date and until payment is made with interest as per the Danish Interest Act, which currently corresponds to the lending rate set by the Nationalbank as of 1 July or 1 January plus 7%.

PCS. 3.1 If payment is not made for more than 15 days after the due date, the Seller reserves the right to:

Stop further deliveries to the Buyer until payment is received.

Require advance payment for future orders.

Submit the claim to debt collection, where all costs are borne by the Buyer.

PCS. 4. The place of fulfillment of the Buyer's payment obligation is the Seller's place of business.

§ 8 Reservation of title

PCS. 1. The Seller reserves the right of ownership of the goods sold until the purchase price has been paid in full. Payment by check, bill of exchange, promissory note or by electronic means of any kind shall not be considered payment until the amount has been credited to the account designated by the Seller without the possibility of reversal.

PCS. 2. If the Buyer defaults on the payment obligations, the Seller is entitled to demand that the goods be returned at the Buyer's expense, without this affecting the Seller's right to further claims as a result of the default.

§ 9 Delay

PCS. 1. Unless otherwise agreed in writing, a stated commissioning date is determined at best estimate.

PCS. 2. If the seller is of the opinion that the agreed delivery or commissioning date cannot be met, the seller must inform the buyer in writing and inform of a new expected date.

PCS. 3. The seller assumes no liability for the buyer's direct or indirect loss due to exceeding the delivery dates. If the delay is considered significant, the buyer is, however, entitled to cancel the order.

 

§ 10 Shortcomings and regulation of liability

PCS.1. Complaints must be made in writing without undue delay. The Buyer shall bear the costs of returning defective parts to the Seller for inspection.

PCS. 2. The Seller undertakes to remedy documented defects for 1 year from the date of delivery or commissioning by repair or delivery at its own discretion. Replaced parts shall be subject to the original complaint period.

PCS. 3. For new parts inserted in connection with repairs pursuant to subsection 1, the complaint period shall expire at the same time as the complaint period pursuant to subsection 1.

PCS. 4. The Seller's obligations under section 10.2 do not apply if the defect is due to:

• Lack of maintenance or incorrect use contrary to the Seller's instructions.
• Incorrect or inappropriate use of the product.
• Changes or technical interventions made without the Seller's written consent.
• Extraordinary climatic influences or other external factors beyond the Seller's control.

PCS. 5. The Seller's liability for damages may never exceed more than 10% of the part of the agreed purchase price that corresponds to the part of the delivery that is defective or delayed.

PCS. 6. The Seller cannot be required to compensate for indirect losses caused by defects in the object of sale. Indirect losses include operating losses, lost profits, or losses caused by leakage of refrigerant, including the Seller not being obliged to refill the propellant. This clause applies both in the case of accidental damage and in the case of damage caused by simple negligence on the part of the Seller.

§ 11 Product liability

PCS. 1. The Seller may only be held liable for damage to items that are primarily intended for commercial use if the Buyer documents that the damage is due to an error committed by the Seller. Liability for property damage, including damage to the Buyer's own products, is a maximum of DKK 500,000.

PCS. 2. The Seller is not liable for operating losses, lost profits or other indirect losses.

PCS. 3. The Buyer shall indemnify the Seller if the Seller is held liable to a third party for damage or loss, to the extent that such liability exceeds the limits set out above. In this connection, the Buyer is obliged to be sued by the same court that is handling any claim for compensation against the Seller.

PCS. 4. If a third party were to raise a claim for compensation for product damage, the parties are obliged to mutually notify each other and report the claim to their insurance companies.

PCS. 5. The Buyer shall ensure that any sub-customers or partners are correctly informed about the properties of the product, including by adding necessary descriptions and warnings in instructions, packaging and other material. The Buyer shall, as far as possible, ensure that this practice is continued in subsequent sales stages.

§ 12 Freedom from liability - force majeure

PCS. 1. The following circumstances shall exempt the parties from liability if they prevent the performance of the agreement or make the performance unreasonably burdensome: industrial disputes, strikes, lockouts and any other circumstances beyond the control of the parties, such as, but not limited to, fire, war, mobilization or unforeseen military conscription, public orders, seizure, currency restrictions, riots and disturbances, lack of means of transport, regularity in the supply of electricity, water and other sources of supply, general shortage of goods, scrapping of major works, as well as deficiencies in or delays in deliveries from subcontractors, which are due to any of the circumstances mentioned in this section.

PCS. 2. The party who wishes to invoke exemption from liability or force majeure must notify the other party in writing without undue delay of the occurrence and cessation of the event.

PCS. 3. Either party is entitled to notify the other party in writing that the agreement is terminated when its performance becomes impossible due to the circumstances mentioned in paragraph 1.

§ 13 Buyer's insurance obligation

PCS. 1. From the time the risk passes from the seller to the buyer, the buyer is obliged to take out fully comprehensive insurance (Allrisk) on the machines/machine parts and all assembly costs. The insurance must remain in force until final payment to the seller has been made.

PCS. 2. Until payment has been made, the seller is entitled at any time to demand documentation that subsection 1 has been fulfilled.

§ 14 Permits

PCS. 1. The buyer is responsible for obtaining the permits required for the delivery and bears the costs thereof.

 

§ 15 Especially regarding assembly

PCS. 1. If assembly is covered by the purchase agreement, the conditions in this Section 15 apply.

PCS. 2. The Buyer must ensure that the assembly work can commence at the agreed time, and that its own work and that of other suppliers is coordinated so that the Seller's assembly can be carried out without interruption. The premises must be tidy and ready for assembly so that the work can commence without delay.

PCS. 3. If the assembly work necessitates changes or repairs to the Buyer's existing buildings, fixtures or other facilities, it is the Buyer's responsibility to arrange for this and to bear the costs thereof.

PCS. 4. The Buyer must notify the Seller if the work mentioned in subsections 2-3 has an impact on the completion of the delivery, including whether the commissioning date is postponed. If this is the case, the Seller's delivery obligation shall be postponed accordingly. The Seller's costs in connection with delays due to the Buyer's circumstances or the Buyer's other suppliers shall be covered by the Buyer.

PCS. 5. If the buyer's own personnel are to carry out the installation under the direction of an assembly manager dispatched by the seller, the above also applies, and all necessary system components must be present.

PCS. 6. The buyer may not employ the seller's personnel for work other than that expressly agreed upon without the seller's prior written consent. If the buyer, in violation of this, uses the seller's personnel for work other than that agreed upon in writing, the seller has no liability for the personnel or the work performed. Any liability under DL 3-19-2 will therefore rest with the buyer.

PCS. 7. The buyer shall make the following available free of charge at the times the seller may request: Helping staff, equipment and facilities for bringing in, internal transport to the assembly site, placing the parts on foundations, bolting, cleaning, guards, crane assistance, scaffolding, shielding, light, power, water, steam, compressed air, heat and oil, etc.

PCS. 8. The buyer shall inform the seller of the applicable safety regulations at the assembly site, and the seller undertakes to instruct its dispatched personnel to comply with these.

PCS. 9. Any work resulting from the Buyer not wanting the system to be started immediately after installation will be considered additional work.

PCS. 10. Delays and additional work will be settled separately according to current prices.

 

§ 16 Choice of law and venue

PCS. 1. Disputes arising from the purchase agreement must be settled according to Danish law, excl. the choice of law rules.