By sending a Purchase Order for X-medics products (“Goods”), the Customer confirms his acceptance of these General Conditions of Sale for X-medics Scandinavia S.m.b.a. (hereafter “X-medics”) . Any different conditions proposed by the Customer (such as by way of example in its own terms and conditions) are rejected, even if no specific objections are raised by X-medics, and are not binding.
§1. Confirmation of Order.
No Purchase Order is binding on X-medics until written confirmation is sent to the Customer. Quotations, pro forma invoices and the like, are not binding until confirmed in writing by X-medics
§2. Terms of Delivery.
Partial shipments are allowed unless prohibited in the Purchase Order. Disposable packing is included in the price and will not be credited if returned. X-medics will ship from any X-medics factory, or those of its subsidiaries, affiliates, or others that X-medics does business with. Absent special instructions on the Purchase Order, X-medics will determine the shipment method without guaranteeing the selected method to be the cheapest or fastest. Delivery dates are approximate. X-medics is not responsible for delays in delivery. Any claims from Customer related to transportation (including late delivery) must be made only against the carrier.
§3. Price Regulations.
X-medics reserves the right to adjust prices based on changes in rates of exchange, variations in costs of materials, changes in wages, government interference, or similar conditions over which X-medics has no control.
From the moment of delivery of any Goods to the Shipper Customer shall bear all risks of loss and damage. X-medics shall have no liability for loss or damage incurred during transportation.
Any stated prices on the Purchase Order are for the indicated Goods, Treatments, and any other specifically indicated items. Customer will pay all shipping, freight, insurance, customs, VAT and import duties, and all other costs of shipment (any shortfalls from amounts shown on Purchase Order will be billed separately by X-medics). Customer shall pay within thirty (30) days of shipment of each Purchase Order by X-medics unless other terms are clearly indicated in the Invoice. Failure to pay timely shall permit X-medics to cancel any pending purchase orders, and/or to keep them in force subject to an extension of the scheduled delivery time at the discretion of X-medics, and/or to claim damages for amounts due from such non-payment (up to the amount in the Purchase Order). Any amount due from Customer not paid timely shall incur interest at the rate of 1.5 % per month until paid in full, plus reminder fees and any applicable bank and collection costs. Customer shall not withhold or adjust any amounts due without specific written approval from X-medics.
§6. Transfer of Ownership.
Until full payment, all Goods remain the property of X-medics and Customer releases any lien, charge, encumbrance or claim of ownership.
§7. Time of Delivery.
Delivery is defined as when goods leave X-medics.
§8. Force Majeure.
X-medics is entitled to cancel orders or suspend delivery of Products and shall not be liable for any non-delivery, faulty or delayed delivery which partly or wholly is caused by circumstances beyond X-medics’ reasonable control, including, but not limited to, riots, civil unrest, war, terrorism, fire, insurrection, requisition, seizure, embargo or defects or delays in deliveries by sub-contractors, strikes, lockouts, slow downs, lack of transportation, scarcity of materials, sickness accidents in product testing, and insufficient supplies of energy. Any of Customer’s contractual rights are suspended or become void in any such circumstances referred to in this clause. Customer is not entitled to any kind of damages or to make a claim whatsoever in case of cancellation or delayed delivery due to such circumstances.
X-medics is not responsible for the appropriateness of X-medics’ Goods or Treatments for use in Customer’s operations. X-medics has made reasonable effort to verify all information in technical data sheets, but cannot guaranty that the information therein will apply to Customer’s situation or process. Suggestions, advice, and other service, beyond any specific information of X-medics’ contained in X-medics’ technical data sheets, are used by Customer at its own risk and sole responsibility. All diagrams, data sheets shall only constitute a description of the Goods and Treatments without any implied warranty whatsoever.
Subject to any specific Customer requirements in the Purchase Order, X-medics reserves the right to make minor changes and alterations to its Goods, Treatments, products and services which do not materially affect agreed specifications or the Products’ form, fit or function, without notice.
§11. Quality Guarantee.
X-medics agrees to repair or replace at the discretion of X-medics’ such Products that on X-medics’ examination are found to be defective at the time of delivery due to faulty manufacture, design and/or defective materials, provided Customer makes a claim to X-medics within 3 months from the date of delivery. If defects occur within the above mentioned period, the Product shall be forwarded to X-medics together with a written notice describing the reason for returning the Product. Freight and insurance shall be paid by Customer. Products returned shall be free of extraneous equipment. If X-medics’ examination shows that the Product is not faulty, the Product shall be returned to Customer. Freight and insurance shall be paid by Customer. If X-medics ascertains that the Product is faulty, X-medics shall send the repaired or a replacement Product to Customer. X-medics may choose the method of dispatch and pays freight and insurance. Products or product parts which have been replaced shall be the property of and retained by X-medics. Warranties, conditions and other terms implied by statute or otherwise shall be excluded other than those, that cannot be excluded by applicable law.
§12. Proprietary and Confidentiality.
Any non-public information, including but not limited to, drawings, descriptions and any other technical documents which X-medics has made or may make available to the Customer (“Technical Information”) shall remain the property of X-medics and shall be treated as confidential by Customer and its representatives and must not, without the written consent of X-medics, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available. Confidential Information shall be returned upon X-medics’ request.
§13. Product Liability.
X-medics shall not be liable for any damage to real property or chattels caused by the Product after it has been delivered and whilst it is in the possession of the Customer. Nor shall X-medics be liable for any damage to products manufactured by the Customer or to products of which the Customer’s products form a part. If X-medics incurs liability towards any third party for such damage as described in the preceding paragraph, the Customer shall indemnify, defend and hold X-medics harmless. Customer shall indemnify and hold X-medics harmless for all claims arising from damage resulting from the use or operation of the Products because of the improper repair, maintenance or operation of the Products by Customer, the failure of Customer to adequately train personnel in the operation of the Products, Customer’s failure to comply with applicable laws or regulations or otherwise. If a claim for damage as described in this clause is lodged by a third party against either X-medics or the Customer, the respondent party shall immediately inform the other party thereof in writing. The Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product.
§14. Secondary Damage.
X-medics SHALL NOT BE HELD RESPONSIBLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGE OR LOSS, WHICH MIGHT ARISE OUT OF ANY BREACH OF WARRANTY, FAULTY PRODUCTS, DELAY IN THE DELIVERY OF THE PRODUCTS, PRODUCT LIABILITY, RECALL OR OTHERWISE, IRRESPECTIVE OF THE CAUSE, INCLUDING BUT NOT LIMITED TO, LOSS OF PRODUCTION, LOSS OF PROFIT AND LOSS OF GOODWILL.
§15. Restraint on Resale and Use for Certain Purposes.
X-medics’ products are produced for civilian use. Customer is not allowed to use or to resell the Products for purposes which have any connection to chemical, biological or nuclear weapons or for missiles which are capable of delivering such weapons. Customer is not allowed to sell the Products to persons, companies or any other kind of organization if Customer has knowledge of or suspects that said persons or entities are related to any kind of terrorist or narcotics activities. The Products may be subject to legal regulations and restrictions and may therefore be subject to restrictions in case of sale to countries/customers covered by export and import ban. These restrictions shall be observed in case of resale of the Products to such countries/customers. Customer is not allowed to resell the Products if there is doubt or suspicion that the Products can be used for the purposes mentioned in the preceding paragraph. If Customer receives knowledge of or suspects that the conditions in this clause have been violated, Customer shall immediately inform X-medics.
§16. Governing Law.
This Agreement and the relationship with Customer, including but not limited to the Purchase Order, shall be governed by the internal laws of the Denmark excluding its conflicts of laws and choice of laws provisions.
§17 Disputes; Mediation and Arbitration.
If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation within 15 days after written notice of a dispute from one party to the other, the parties agree first to try in good faith to resolve the dispute by mediation. The mediation shall be conducted before one mediator and will be held in Copenhagen, Denmark (unless otherwise agreed by the parties). The period to complete the mediation shall not exceed thirty (30) days. The failure of a party to participate in any mediation shall be deemed a waiver of any obligation on the other party to pursue mediation efforts. The parties will share equally the costs of the mediator and mediation procedures. Any dispute not resolved by mediation shall be solved by Arbritation at the Danish Institute of Arbitration, Copenhagen, Denmark. The parties consent to such jurisdiction and waive any right to pursue claims in any other forum.
§18 Indemnities and Collection Costs.
Customer will defend, indemnify and hold X-medics harmless from and against any claims, demands, liabilities (including reasonable attorneys fees and costs) arising from or related to breach by Customer of its obligations to X-medics. If X-medics brings an action to collect any amount owed by Customer or to enforce this Agreement (including but not limited to the Purchase Order), then X-medics shall recover its reasonable attorneys fees and costs (including on any appeal).