1. Preamble
These General Terms and Conditions shall apply to all deliveries from Fibertex Personal Care A/S and its affiliates (hereinafter referred to as “the Seller”) and shall be binding on the Parties, thus superseding all prior agreements and customs, including the Customer’s general terms and conditions, unless the Terms and Conditions of Sale and Delivery, either fully or partially, are waived by expressly written agreement. The Terms and Conditions of Sale and Delivery apply regardless of the medium or method used to conclude the order, and regardless of whether it is signed, confirmed by e-mail or concluded in any other way, and may be amended from time to time without notice.
Deviations from the Agreement, including these General Terms and Conditions, shall be valid only if expressly agreed in writing by the Parties. In the event of a conflict between these General Terms and Conditions and the terms of a Seller order confirmation, the latter shall prevail. The Parties acknowledge that they were provided with enough time and opportunity to study and negotiate the Agreement and that they received all information for the execution of the Agreement.
2. Order Confirmation and Cancellation
When an order has been submitted to Seller, the order is binding. Upon Seller’s written confirmation of the order, a final agreement on sale and delivery of goods has been entered into.
If unforeseen circumstances arise which make it necessary for the Seller to make changes to the order, including reduction of order quantity or the like, the Seller may make such reasonable changes. Such changes do not entail a right for the Customer to cancel the order.
It is a prerequisite that the Customer is able to pay for delivered products. In the event that after entering into the agreement unforeseen difficulties arise, unsatisfactory credit information about the Customer is obtained, or there is reason to suspect the Customer for not being able to fulfil the contractual obligations (including but not limited to any default of payment, suspension of payment, insolvency or bankruptcy proceedings), the Seller shall have the right to annul deliveries under the contract. Alternatively, the Seller shall have the right to demand provision of a fully adequate bank guarantee.
The Customer is liable for compensation of any loss suffered by the Seller as a consequence of such annulment. The Customer’s cancellation of the confirmed order can only be accepted with prior written consent from Seller.
3. Terms of Delivery and Transfer of Risk
If unforeseen circumstances arise which make it necessary for the Seller to make changes to the order, including reduction of order quantity or the like, the Seller may make such reasonable changes. Such changes do not entail a right for the Customer to cancel the order.
In the event that products are sold with the stipulation “customs cleared”, any deviation from the import duty as of the contract date shall be the responsibility of the Customer.
4. Time of Delivery and Delay
The time of delivery is specified in the order confirmation. The Seller is entitled to postpone delivery by 14 days but must immediately inform the Customer in writing of such postponement. In the event of force majeure as referred to below, the time of delivery may be postponed until the obstacle has ceased to exist and normal trade and transport will be feasible again.
If the Customer’s circumstances prevent timely delivery, the Customer may not object thereto and is obliged to accept delivery of the goods when the Customer’s circumstances permit this again.
If delivery has not taken place within 14 days of the agreed time of delivery, delivery shall be deemed to be late only if the Customer has sent the Seller a written reminder and delivery has not taken place within 7 days of the Seller’s receipt of the reminder.
In the event of any delay on the part of the Seller according to the above, the Customer shall be entitled to claim reasonable, direct damages for delayed delivery provided that it is proved that the delay was caused through the fault of Seller and, furthermore, that the Customer suffered damage as a consequence of the delay. The Seller shall have no further liability in respect to any such delay (whether in contract, tort or otherwise).
The maximum amount of damages attributable to a delayed delivery shall in no event exceed 5% of the invoiced value, exclusive of VAT, of the belated deliveries.
5. Delivered Quantities
Ordered quantities may be delivered by the Seller with a deviation of +/-10%. Actual delivered quantities will be specified in the invoice.
6. Prices
All prices are stated in EUR or USD and are exclusive of VAT unless otherwise expressly contracted. Prices are subject to changes in customs duties, insurance and transportation costs, changes in subcontractor prices, tariffs, other taxes and currency fluctuations and may be increased and/or the currency may be changed until delivery is made. The Seller will inform the Customer of any price changes. The Customer is free to set its resale prices.
7. Payment
Payment shall be made according to the Agreement and in the currency stated therein. The invoiced amount is due for payment according to the stipulated conditions without previous notification. Drafts
and cheques are credited subject to the provision that they are honoured on the due date, and they do not free the Customer from its duties until the actual amount has been made available to the Seller. Any expense arising out of collection procedures, discounting and stamp duties shall be borne by the Customer.
In the event that payment does not take place on the due date, the Seller is entitled to charge interest as stipulated in the invoice.
The delivered products shall remain the Seller’s property until full and final payment has been effected.
8. Defects
Transport damage and visible damage to the products shall be reported in writing immediately upon receipt of the products. In case of non-visible defects, the objection must be made immediately subsequent to the time when the defect is or could have been discovered by thorough inspection, but no later than 9 months after the delivery date. If part of the order is not delivered or is delayed, or if part of the order is defective or deficient, only that part of the order may be cancelled. Any objection must
be specific, documented and include an exact description of the contents of the objection. Goods cannot be returned without the prior written consent of the Seller. In case of defects, the Seller shall not be liable for any other direct or indirect disruption of the Customer’s business, indirect loss, loss of profits or any other form of loss. In any event, the Seller’s maximum liability shall be equivalent to reimbursement to the Customer of the amount paid for the defective part of the order.
In the event of a justified complaint of defects, the Seller shall supply replacement products as soon as reasonably practicable after being notified of any such non-compliance at no additional cost to the Customer. If Seller successfully performs said replacement services, Seller shall have no further liability in respect to any such non-compliance (whether in contract, tort or otherwise).
The Customer shall bear the sole responsibility for the correct application of the Seller’s products and shall ensure that the products are appropriate for the intended purpose. In no event shall Seller be liable for any claim resulting from (i) any alteration, addition or improvement made to the composition or constituent parts of the Products; or (ii) the manufacturing process applied by the Costumer.
All material, whether written, audio-visual, photographic, or otherwise, describing the practical application of the Seller’s products, is based on current experience gained in specific application situations. The Seller shall assume no responsibility for defects in such material.
9. Use into Medical Devices or Applications
The Seller does not support the use of its nonwoven products into medical devices or applications, unless this is expressly stated to the contrary by the Seller in writing. The Customer shall bear the sole responsibility for the correct application of the Seller’s products and shall ensure that the products are appropriate for the intended purpose.
The Customer shall indemnify the Seller for any third-party claims raised towards the Seller as a result of the use of the Seller’s nonwoven hygienic products into medical devices or applications. The Customer shall take out an insurance to cover any such claims.
The Customer shall at any time upon Seller’s request supply the Seller with documentation of any such
insurance by means of an insurance certificate.
10. Limitation of Liability
The Seller shall be liable for damage to persons or property caused by the Seller’s products or services after they have been put on the market or performed, to the extent permitted by law.
Notwithstanding the above, the Seller shall not be liable for any other direct or indirect disruption of the
Customer’s business, indirect loss, loss of business, loss of time, loss of profits or any other form of loss.
The Seller’s maximum aggregate liability to the Customer (and Customer Group) for all loss, damages and expense arising over a twelve-month period shall be limited as follows:
(i) EUR 5 million in respect of losses and damages which are fully covered by and recoverable under the Seller’s product liability insurance;
(ii) EUR 500,000 in respect of losses and damages which are fully covered by and recoverable under the Seller’s product recall liability insurance; and
(iii) – to the extent that any such losses and damages are not fully covered by and recoverable under either such insurance to a sum equal to the amount of fees paid to the Seller by the Customer under this Agreement (net of value added tax) during the twelve-month period immediately preceding the claim less the Seller’s direct costs incurred in generating the same.
The Customer is responsible for making its own arrangements to insure any excess loss.
The Seller shall not be obliged to make payment of any sums which it is liable to pay pursuant to the above until the relevant sums have actually been recovered under the insurance policy.
If the Seller is imposed with a liability exceeding the liability described above the Customer shall indemnify the Seller accordingly.
If a third party claims compensation from one of the Parties with reference to this provision, the Party concerned shall immediately inform the other Party thereof.
11. Confidentiality
In connection with the Parties’ Agreement, it may be necessary for either Party to share information, including Confidential Information. Confidential Information shall mean any information which is marked ‘confidential’ at the time of disclosure, or which should be reasonably understood by the Receiving Party to be proprietary or confidential to the Disclosing Party because of the circumstances of disclosure or due to the nature of the information itself.
The Parties agree to handle all exchanged and confidential information confidentially, using it only in
correspondence with these Terms and Conditions as well as the Agreement.
The receiving Party shall treat any notes, summaries, excerpts, information, or other materials created,
developed, or derived by receiving Party to the extent they are based on, contain, or embody Confidential Information of the disclosing Party as Confidential Information. This could be in the form of (for example, but not limited to) all financial, technical, operational, administrative, business, corporate, commercial and other information and data relating to the Parties, their affiliates or their authorised representatives. With exception to the above, the following shall be exempt, if the receiving Party can provide written evidence that the Confidential Information undoubtedly:
(i) is or becomes publicly available and such public availability is not due to a breach of a confidentiality obligation by the receiving Party or someone for whom the receiving Party is responsible under the Agreement;
(ii) is already known by the receiving Party when received from the disclosing Party, and only to the extent that this information was originally received without any restrictions on use;
(iii) has been received from a third party who was lawfully in possession of the information and who, in providing the information, has not breached an obligation of confidentiality; or (iv)is independently developed by or on behalf of the receiving Party.
The burden of proof lies with the receiving Party.
In addition, “Confidential Information” includes any notes, analyses, reports, compilations and other documents containing, reflecting or otherwise derived from such information, whether prepared by the receiving Party or others. Finally, considerations and discussions or negotiations that are taking place concerning the Agreement and the terms, conditions and other matters relating thereto are considered “Confidential Information”.
Any Confidential Information remains the property of the disclosing Party. The receiving Party does not obtain a license or other right to use the Confidential Information via the Agreement.
The obligation under this provision shall survive the termination of the Parties’ Agreement for a period of five (5) years after its termination or natural expiry.
12. Personal Data
In connection with the execution of the Customer’s order, personal data may be processed as part of the performance of the contract. In some cases, the Customer’s personal data will be disclosed to other independent data controllers, such as a freight company in order for the company to fulfil the order. Personal data is processed with appropriate security and kept only as long as necessary. Please refer to the Seller’s Privacy Policy on the Seller’s website.
13. Force Majeure
The Seller shall not be liable if the following non[1]exhaustive force majeure events occur and prevent or delay performance of the Agreement: War and mobilisation; riot and civil commotion; terrorism; natural disasters; strike and lockout; shortage of goods; failure, shortage or delay in deliveries by subcontractors or if subcontractors are otherwise affected by the conditions; fire; shortage of means of transportation; currency restrictions; import and export restrictions; death, illness or absence of key employees; computer virus; epidemics, pandemics, or other circumstances beyond the direct control of the Seller. In such cases, the affected party, the Seller, shall be entitled to postpone its performance of the obligation until the obstacle has ceased or, alternatively, to cancel the contract in whole or in part without incurring any liability.
14. Choice of Law and Venue
These General Terms and Conditions are governed by and construed in accordance with Danish law without regard to the rules of private international law in force at any time to the extent that the application of such rules would result in a choice of law other than Danish law. The Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Any dispute arising out of or in connection with the agreement, including any dispute concerning the existence, validity or termination thereof, shall be settled by a Danish court in the judicial district of the Seller’s head office.
In the event that recovery is required by the Seller, the Seller may at any time choose to recover the debt at the Customer’s home court in accordance with the laws of that country.
