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Terms and Conditions - Europe

MOCON Europe A/S GENERAL TERMS OF SALE AND DELIVERY, December 2018

General:
The following terms and conditions apply to each and every order. Any other conditions shall only be binding if they have been expressly acknowledged by MOCON Europe A/S in writing.

In order to be effective, any oral agreements made prior to or at the time of concluding the contract must be confirmed by MOCON Europe A/S in writing.

Delivery:
MOCON Europe A/S’s offers are subject to change without notice. Any documents enclosed with the offer such as illustrations and indications of dimensions and weight are for information purposes only and not binding.

Partial deliveries and the respective invoices shall be permitted to a reasonable extent.

Delivery dates shall only be binding if agreed in writing. The delivery period shall begin when the goods leave the factory or warehouse, but not before the customer’s standard duty to cooperate has been fulfilled, particularly in respect of the submission of necessary documents, payment of deposits or the agreed call-up by the customer.

EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT MOCON EUROPE A/S ACCEPTS NO LIABILITY INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE SUFFERED BY THE CUSTOMER, DIRECTLY OR INDIRECTLY, DUE TO DELIVERY TAKING PLACE AFTER THE INDICATED DELIVERY DATE.

Should the customer fail to call up the goods on time, MOCON Europe A/S reserves the right, at MOCON Europe A/S’s discretion, to ship them to the customer at the latter’s expense or to keep them in storage and charge the customer the normal warehousing fees. Force majeure and other influences beyond MOCON Europe A/S’s control that may hinder the smooth handling of the order, in particular belated deliveries on the part of MOCON Europe A/S’s suppliers, as well as traffic congestion and stoppages, labour disputes, shortage of materials, power cuts, action by government authorities or import and export restrictions shall entitle MOCON Europe A/S to postpone the delivery date or, insofar as the fulfilment of the order is seriously jeopardized or prevented by the aforementioned events, to cancel the order in part or in whole, without a right to compensation on the part of the customer. MOCON Europe A/S shall notify the customer immediately upon becoming aware of such circumstances.

Acceptance of the goods without objection by the carrier shall be taken as proof of flawless packaging. Unless agreed otherwise in writing, shipments are always sent Ex Works (MOCON Europe A/S’s work shop or warehouse) Incoterms 2010.

In the event that dispatch is delayed at the customer’s request or for reasons beyond the control of MOCON Europe A/S, the risk shall be passed to the customer as soon as he has been notified of readiness for dispatch. The return of goods shall require prior written approval by MOCON Europe A/S.

Warranty:
MOCON EUROPE A/S WARRANTS THE USE OF FLAWLESS MATERIALS AND CONFORMITY TO CONTRACT SPECIFICATIONS. ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A SPECIFIC PURPOSE, UNLESS SPECIFICALLY CONTRACTED FOR IN WRITING, ARE SPECIFICALLY EXCLUDED.

MOCON Europe A/S shall be informed in writing immediately of any defects discovered, however in the case of obvious and visible defects, no later than fourteen days following receipt of the goods. Should the goods be defective or lack warranted qualities or should they become defective during a warranty period of 12 months starting at the time of delivery MOCON Europe A/S will, at MOCON Europe A/S’s option, remedy the defect or exchange the goods or take the goods back against reimbursement of the purchase price. At MOCON Europe A/S’s choice warranty repair shall be carried out at MOCON Europe A/S’s premises or at a distributor’s site. Repaired or replaced Products or parts are warranted by MOCON Europe A/S for a period of 6 months, however at least until the end of the general guarantee period for the original supplied goods as stated above. Costs of freight are not included in the warranty. Missing quantities will be delivered subsequently if possible; in any other case a credit note will be issued. MOCON Europe A/S’s liability for defects does not extend to natural wear and tear, consumables and improper treatment and does not cover damage/loss caused by faulty or careless treatment, overuse, unsuitable operating material, non-compliance with MOCON Europe A/S’s recommendations for the treatment, testing and storage of MOCON Europe A/S’s products, nor does it cover damage/loss caused in any other way, the fault of which cannot be attributed to MOCON Europe A/S. MOCON Europe A/S is also not liable if the Customer or a third party makes alterations to the goods delivered by MOCON Europe A/S or carries out improper repair work.

Liability:
THE LIABILITY OF MOCON EUROPE A/S SHALL BE LIMITED TO (AT MOCON EUROPE A/S’s DISCRETION) REPAIR OF DEFECTIVE GOODS OR REPLACEMENT OF ANY NON-CONFIRMING PRODUCTS OR REIMBURSEMENT OF THE PURCHASE PRICE.

MOCON Europe A/S shall not be liable for damage to property or movables caused by the goods after delivery has taken place, including but not limited to damage to products manufactured by the customer, or to products of which the customer’s products form a part. MOCON Europe A/S’s liability shall in no event exceed DKK 75 mio. per damage, total per year. To the extent that MOCON Europe A/S might incur product liability towards a third party, the customer shall indemnify MOCON Europe A/S to the same extent that the liability of MOCON Europe A/S is limited in this clause.

EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT MOCON EUROPE A/S SHALL NOT BE LIABLE FOR OTHER LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, ARISING FROM THE USE OF THE PRODUCTS OR FOR THE COST OF REPLACEMENT, LOSS OF BUSINESS OPPORTUNITIES, LOST PROFITS, INJURY TO GOOD WILL OR ANY OTHER SPECIAL OR CONSEQUENTIAL DAMAGES. Claims for damages for product liability on account of bodily injury or damage to health remain unaffected.

Terms of Payment:
The purchase price shall be paid as stipulated in the sales contract or the order confirmation.

In the case of default, MOCON Europe A/S is entitled to charge default interest in the amount of 4.5% per annum above the effective Euro- Interbank-Offered- Rate (Euribor).

Should there be a substantial deterioration in the customer’s net asset position, resulting particularly in non-conformance with payment deadlines, seeking of deferment, composition, or suspension of payments, MOCON Europe A/S shall be entitled to demand immediate payment of all debts arising from the business relationship. Under the same conditions MOCON Europe A/S shall be entitled to demand payments on account or the deposit of a security for all current transactions.

Retention of Title:
MOCON Europe A/S retains ownership of all of the delivered goods until payment in full of all debt claims to which MOCON Europe A/S is entitled in conjunction with the business relationship and future debt claims regardless of the legal grounds thereof.

MOCON Europe A/S is entitled at any time to demand the surrender of the goods belonging to MOCON Europe A/S if the customer is in default of one payment, or if it’s financial situation considerably deteriorates. Notwithstanding other compulsory statutory provisions, the exercising of this right does not amount to a rescission of the contract unless MOCON Europe A/S makes an express declaration to this effect.

MOCON Europe A/S retains ownership and copyrights to cost estimates, samples, drawings and other documents / materials which MOCON Europe A/S has supplied the customer with in connection with the offer or MOCON Europe A/S’s delivery. Third parties shall not be allowed access to such documents / materials and they must be returned to MOCON Europe A/S upon demand.

Invoice Fraud Prevention:
Given the increased risk of invoice fraud, Buyer should treat any notification to change details of MOCON Europe A/S’s bank account with suspicion. MOCON Europe A/S will not inform or instruct Buyer to make remittance or money transfers to any other beneficiary, address or bank account via email. Always verify a request to update records or change bank account information BEFORE implementing a change or completing the payment. Verify any requested changes by speaking to a known MOCON Europe A/S representative.

Final Provisions:
The customer shall be permitted to offset payments only in the case of undisputed or legally binding claims. Claims against MOCON Europe A/S may not be assigned to a third party.

This agreement shall be governed by the laws of the Kingdom of Denmark specifically excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods, 1980 (CISG).

Any dispute or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration). The arbitration tribunal shall be composed of three (3) arbitrators appointed by the Institute.

December 2018