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These General Terms shall apply for all sales and deliveries from X-YACHTS A/S to the buyer save as varied by express agreement accepted in writing by X-YACHTS A/S.
Upon receipt of an order from the buyer or after discussions between the buyer and X-YACHTS A/S, X-YACHTS A/S will send to the buyer an order confirmation in writing. The buyer is requested to sign the order confirmation and return it to X-YACHTS A/S for signature. A copy of the duly signed order confirmation by both parties will then be send to the buyer. A binding contract shall be deemed to have been entered into only when the buyer and X-YACHTS A/S have both signed the order confirmation..
All prices are stated in DKK or EUR excluding VAT, taxes, duties and other charges and fees. If by no fault of X-YACHTS A/S or X-YACHTS A/S’ subcontractors, X-YACHTS A/S is delayed in the delivery of the product, X-YACHTS A/S shall be entitled to increase the price to reflect any actual costs incurred because of the delay. Furthermore, X-YACHTS A/S is entitled to adjust the price due to changing prices on raw materials or changing prices from sub-suppliers in consequence hereof or any changes in indirect taxes, rates of duty, rates of exchange, etc. All prices stated are ex works Denmark.
Delivery is ex works (INCOTERMS 2010) X-YACHTS A/S’ address in Haderslev, Denmark (Fjordagervej 21, 6100 Haderslev). Any agreed delivery time is an estimated time of delivery and delivery on an exact date is not guaranteed. X-YACHTS A/S is not responsible or liable for any delays unless caused by X-YACHTS A/S’ gross negligence or wilful misconduct. Delivery is always subject to availability of the product or manufacturing, force majeure situations or conditions on which X-YACHTS A/S has no direct influence that prevents X-YACHTS A/S from complying with the agreed delivery time (strikes, sub-suppliers inability to deliver, fire, flooding, storms, IT-crash etc.).
However the Manufacturer shall of course use all reasonable endeavours in order to secure delivery on the agreed delivery date.
Delivery is subject to full and timely payment of the purchase price unless a written agreement to the contrary has been made.
If the buyer fails to take delivery of the products or fails to give X-YACHTS A/S adequate instructions at the time stated for delivery then, without prejudice to any other right or remedy available to X-YACHTS A/S, X-YACHTS A/S may store the products until actual delivery and charge the buyer for the reasonable costs (including insurance) of storage.
Shipment is to be carried out at the buyer’s own account and risk. X-YACHTS A/S is not responsible for any delay, damage, miscarriage or other irregularities that may occur during shipment. Insurance is made at buyer’s account on buyer’s written request.
If required by X-YACHTS A/S, the formation of any contract between X-YACHTS A/S and the buyer shall be subject to the buyer providing advance payment or an appropriate security (form, content and issuer to the satisfaction of X-YACHTS A/S) for the full and timely payment of the purchase price. Thereafter the buyer shall supplement such security as X-YACHTS A/S may reasonably request from time to time.
Buyer shall pay X-YACHTS A/S the purchase price in accordance with the payment schedule in the order confirmation. If there is no payment schedule in the order confirmation, the buyer shall pay X-YACHTS A/S the purchase price net cash on delivery.
Transfer of funds shall be made in accordance with a mutually agreed upon procedure. If no procedure is agreed upon, then the buyer shall transfer funds as directed by X-YACHTS A/S in accordance with normal and customary practices of the trade, provided that the funds shall be put at X-YACHTS A/S' free disposal in the country of X-YACHTS A/S' principal place of business free and clear of any encumbrances, levies, bank charges or fees of any nature whatsoever. The buyer shall pay X-YACHTS A/S the purchase price without any set-offs or counterclaims whatsoever.
In case of delay with payment X-YACHTS A/S is entitled to charge interest at the rate of 1% of the invoiced amount per each beginning month.
If delivery is made without full payment, for whatever reason, the title to the product delivered shall remain with X-YACHTS A/S to the fullest extend possible pursuant to Danish law until total and final payment has been made, including any interest and/or expenses. Without limiting the foregoing, X-YACHTS A/S may exercise right of retention pursuant to the Danish Merchant Shipping Act.
In the event the buyer does not strictly comply with the terms of payment set out in the order confirmation or herein, X-YACHTS A/S may, in addition to any other remedies available to X-YACHTS A/S, suspend all performance until the buyer has so complied.
In case the buyer does not comply with applicable Danish rules on VAT the buyer is liable for any VAT charged X-YACHTS A/S as well as any costs related hereto incurred by X-YACHTS A/S.
Unless agreed upon in advance in writing X-YACHTS A/S gives no right of return on sold products.
A buyer, who is a consumer, has certain minimum statutory rights regarding lack of conformity, product liability, delay and remedies for breach of contract. These rights are not affected by these terms.
Factory new boats and new spare parts:
X-YACHTS A/S will deliver factory new products to the buyer as specified in the order confirmation and the product will at delivery cf. sec. 4 be free from defects in design, materials and workmanship. This shall also extent to any repairs or replacements of defective parts during the complaints period (in Danish: Reklamationsperioden), cf. just below.
Used boats and used parts:
X-YACHTS A/S will deliver used boats and used parts to the buyer as specified in the order confirmation at delivery cf. sec. 4 with due regard to the boat’s or parts condition due to age, wear and tear.
Notice of lack of conformity and deadline:
If the buyer intends to claim lack of conformity, the buyer shall give X-YACHTS A/S notice thereof within a reasonable time after the buyer has discovered the lack of conformity. If the buyer fails to do so, the buyer will lose the right to rely on the lack of conformity.
In any event, however, the buyer loses the right to rely on a lack of conformity of the product if the buyer does not give X-YACHTS A/S notice thereof within a period of two years from the date on which the product was delivered.
Any determination of whether the product lacks conformity shall be based on the condition of the product at the time when delivery took place.
If, within a period of six months after delivery it becomes apparent that the product lacks conformity, the lack of conformity shall be presumed to have existed at the time when delivery took place, cf. Section 4 in these terms, unless X-YACHTS A/S produces evidence to the contrary or this presumption is incompatible with the nature of the product or the lack of conformity. If the lack of conformity becomes apparent after the six months period has expired, the onus is on the buyer to prove that the lack of conformity existed at the time when delivery took place, cf. Section 4 in these terms.
X-YACHTS A/S shall repair, replace or, at its option, refund the price of any item of the product that lacks conformity. This is the buyer's sole and exclusive remedy for the product which does not meet the mechanical specification or any other specification in the order confirmation. X-YACHTS A/S shall have no responsibility for damage caused to the product by:
Unless X-YACHTS A/S decides otherwise, any repair or replacement work will be carried out at X-YACHTS A/S, Fjordagervej 21, 6100 Haderslev.
Unless otherwise specified, the buyer shall bear the cost and risk of loss of or damage to products in shipment to X-YACHTS A/S and in shipment to the buyer of repaired or replaced products. Any parts which are replaced by X-YACHTS A/S shall thereupon become X-YACHTS A/S' property.
X-YACHTS A/S MAKES NO OTHER WARRANTIES EXCEPT THOSE EXPLICITLY CONTAINED HEREIN AND IN THE ORDER CONFIRMATION. X-YACHTS A/S DISCLAIMS ANY IMPLIED WARRANTIES, WHETHER OF MECHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE TO THE EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW.
The buyer's sole remedies for delays in delivery of the product, defective products and all other breaches of X-YACHTS A/S' obligations are as stated herein. If X-YACHTS A/S incurs liability towards a third party that exceeds the limitations contained herein, the buyer shall indemnify X-YACHTS A/S to the extent that the liability of X-YACHTS A/S is limited herein.
X-YACHTS A/S is under no circumstances liable for indirect, special, consequential or incidental damages or losses, including but not limited to operating losses, loss of profits, loss of time, potential income from chartering, leasing of boat, passenger transportation, cargo transportation, whether claimed in contract, warranty, product liability, tort (including negligence) or otherwise.
Subject to Section 8(1) in these terms, X-YACHTS A/S shall only be liable for damage to property and personal injuries (product liability) caused as a consequence of defects in the products delivered to the extent that it is documented that such defect arose due to X-YACHTS A/S' errors or omissions that could not have been prevented by the buyer's inspection.
X-YACHTS A/S is not in any event liable for any product liability claimed by the buyer or a third party save as covered under X-YACHTS A/S' Product Liability insurance policy.
If X-YACHTS A/S incurs product liability towards a third party, the buyer shall indemnify X-YACHTS A/S to the extent that the liability of X-YACHTS A/S is limited herein.
On new boats X-YACHTS A/S gives the buyer a 5 years guarantee (in Danish: Garanti) against osmosis provided that:
The warranty period for osmosis repairs is 24 months from the date of repair, however, not less than the term for the original Product as per above.
X-YACHTS A/S shall have no liability for failure in performance of X-YACHTS A/S' obligations, when such failure in performance result from force majeure, including war, riots, terrorism, civil disorder, government or local authority intervention, strike, blockade or lockout with X-YACHTS A/S or X-YACHTS A/S' contractors, regardless of the reason, embargo on exports or imports, natural disaster or adverse weather conditions, fire, failure of machinery, labour shortage, scarcity of raw materials or energy or other events beyond the reasonable control of X-YACHTS A/S that prevents X-YACHTS A/S from performing its obligations.
Illustrations, specifications and data in X-YACHTS A/S' catalogue and other printed material are subject to alteration and X-YACHTS A/S reserves the right to make changes without prior notice.
Any descriptive data found in any advertisement, catalogue, brochure, circular or the like are approximate only. They shall not be considered as any warranty or legal obligation of X-YACHTS A/S unless specifically included in the order confirmation as such.
All illustrations, drawings and technical documentation relating to the products or its manufacture shall remain the property of X-YACHTS A/S.
Unless explicitly agreed otherwise in writing, any disputes between the parties, which cannot be solved amicably, shall be settled at X-YACHTS A/S' venue (the district court of Sønderborg, Denmark) and governed by Danish Law. Danish choice of law rules shall not apply, if such rules would lead to the application of other law than Danish law.
General Terms of Sale and Delivery 2017-08
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