In these terms and conditions, the expressions we, us and our, are a reference to Decoflame ApS. The expression Buyer refers to the Buyer of Goods, Goods refer to the products and services supplied to the Buyer by Decoflame, Parties refers to Decoflame and the Buyer and Sales Order shall mean the legally binding documents based on which Decoflame supplies Goods to the Buyer.
Amendments to General Terms and Conditions
We reserve the right to amend these terms and conditions from time to time. Amendments will be effective immediately.
These General Terms and Conditions apply to and are part of every offer made by us, every agreement between us and the Buyer and all actions to execute an agreement made between us and the Buyer. We explicitly rule out the applicability of the terms and conditions of purchase (or named otherwise) used of the buyer.
Offer and Establishment of Agreement
An offer or quotation does not bind us and is only an invitation for the Buyer to place an order. An agreement is only established provided that we accept an order from the Buyer in writing or if we execute an order.
Amendments and Additions
Any amendments and additions to any provision of an agreement and/or General Terms and Conditions can only be made in writing. If an amendment and/or addition as aforementioned is agreed, it shall only apply to the agreement in question, unless the contrary is explicitly agreed.
All prices are stated excluding VAT. The prices are based on the conditions which apply for us at the time at which that agreement was entered into, such as amongst other things, currency exchange rates, import and export duties and other levies owed in connection with import or export, the costs of raw materials and semi-finished products. Should these conditions change after the agreement has been entered into but before delivery has been effected and should we have been unable to foresee these changes, we reserve the right to change the price accordingly, stating the resulting costs.
Payment by the Buyer of the purchase sum and any other invoiced sum or sum owed by the Buyer shall be made net, by international bank transfer, without any discount or deduction before delivery is made, unless otherwise agreed. The Buyer does not have the right to suspend its payment obligations. Should credit terms be agreed, the mere expiry of a payment term means that the Buyer is in default. In that case, all of our claims against the Buyer shall immediately be payable. The Buyer shall, without any further notice or default, on all sums that have not been paid by no later than the last day of the payment term owe the legal interest rate increased by 2% from the first day after the payment term. If the Buyer, even after a second payment term which has been determined in a letter sent by registered mail expires, has not paid the sum and interest owed, the Buyer is obliged to reimburse us for all extra-judicial and judicial cost incurred in legal proceedings resulting from the delay in payment. The extra-judicial costs to be reimbursed by the Buyer shall amount to at least 10% of the sum that has remained unpaid, to be increased by the turnover tax owed over that sum.
Term of Delivery
The term of delivery which we indicate on our order documents is based on the circumstances that apply to us at the time at which the agreement was entered into and, if applicable, on the information we received from third parties. We aim at adhering to the term of delivery as closely as possible. The term of delivery shall start on the date on which the agreement is established. If we require tools or information for the execution of the agreement which have to be provided by the Buyer, the term of delivery shall start on the day that all necessary information or tools are in our possession, but no earlier than on the date on which the agreement is established. If the term of delivery is exceeded, the Buyer is not entitled claim for damages. Furthermore, the Buyer shall not be entitled to dissolve the agreement, unless the exceeding of the term of delivery is such that the Buyer cannot reasonably be expected to continue with the agreement. In that case, the Buyer is entitled to cancel the order in question, as long as it notifies us in writing and without prejudice to our right to as yet deliver the Goods to the Buyer within 3 weeks of receipt of notification. At all times, we reserve the right to deliver in instalments.
Delivery and Risk
The delivery of the Goods, the provisions concerning the costs of the delivery and the transfer of risk shall occur, if not explicitly mentioned otherwise in our offer/quotation or order confirmation, in accordance with the conditions customary in trade based on the INCO TERMS 2000. If the conditions mentioned in this paragraph have not been explicitly agreed, the risk of the goods and the packaging shall always transfer to the Buyer at the time at which the Goods are ready to be shipped and delivery of the Goods shall always be carried out for the account and at the risk of the Buyer. If the Buyer does not remove or take receipt of the goods or documents issued for the goods at the time agreed upon, then the Buyer shall be in default with notice of default being required. In that case, we are entitled to have the Goods stored or sold to third party for the account and risk of the Buyer. The Buyer shall continue to owe the purchase sum, increased by interest and costs (as compensation), if applicable minus the net revenues of the sale to a third party.
Inspection and Claim
The Buyer is obliged carefully to inspect the Goods immediately on arrival at destination or, if this is earlier, on receipt by the Buyer or a third party it has commissioned. Any claims regarding shortcomings or damage of the goods, which are due to material or production errors, as well as differences in the number, weight, composition, finish or quality between the Goods delivered and the description given for them on the order confirmation or invoice, must be sent to us within 24 hours of arrival of the Goods accompanied by photographic evidence in high resolution. Shortcomings that could not reasonably have been determined within the aforementioned term must be reported to us in writing with photograph evidence in high resolution immediately on observing them, however, not later than 5 days from receipt of the Goods. If we are not informed in writing on time by or on behalf of the Buyer, any claims of the Buyer against us become null and void. If the Buyer discovers any shortcomings, it is obliged immediately to cease using or installing the Goods in question.
The Buyer shall grant us every cooperation necessary to investigate the shortcoming, amongst other things by giving us the opportunity to conduct an investigation on site into the circumstances of the handling, installation and/or use of the Goods. The Buyer is not free to return the Goods of its own accord unless we have agreed to the Goods being returned by the Buyer. If the Buyer makes its claim for shortcomings to the goods on time, correctly and rightly, we will bear the freight cost of returning the Goods in as far as they are reasonable. The Buyer cannot exercise any rights on us with regard to claims due to shortcomings of the Goods if the Goods have not been used correctly as described in the User Manual and/or as long as the Buyer has failed to fulfil one of its obligation towards us. The Buyer is not entitled to claim for Goods if we for any reason cannot investigate the claim. If the Buyer makes a claim for shortcomings to the Good on time, correctly and rightly, our liability will be limited to the obligations described under LIABILITY below, depending on the nature of the reclaim, with due observance of the other provisions in that paragraph below. Shortcomings relating to an individual batch of Goods, that is part of a delivery that consists of several batches only entitle the Buyer to dissolve the entire agreement, if the Buyer cannot reasonably be expected to continue with the remaining part of the agreement.
Should we be unable to fulfil our obligations towards the Buyer under our agreement, due to circumstances beyond our control, those obligations are suspended for the duration of the situation causing those circumstances. If the circumstances beyond our control have lasted for three months, both parties are entitled to dissolve the agreement in full or in part by means of a letter sent by registered mail. In case of circumstances beyond our control, the Buyer is not entitled to any compensation for damages, not even if we should have had any benefit from those circumstances. Circumstances beyond our control are: any circumstance beyond our control which in full or in part hinders us to fulfil our obligations towards the Buyer or as a result of which we cannot reasonably be expected to fulfil our obligations, regardless of whether those circumstances could be foreseen at the time that at which the agreement was entered into or not. These circumstances also include: strikes, stagnation or other problems in our production or the production of our suppliers and/or the transport provided by third party and/or measures by any government bodies, as well as the lack of any license to be obtained for the government. We shall inform the Buyer of any (possible) circumstances beyond our control as soon as possible.
Retention of Title
Ownership of the Goods shall, despite the actual delivery, not transfer to the Buyer until the Buyer has completely paid to us everything that it owes or shall owe with regards to the Goods, including the purchase sum, any surcharges, interest, tax and costs owed as a result of these General Terms and Conditions, as well as any remuneration for work (to be) carried out for the Goods. Before ownership of the Goods has transferred to the Buyer, the Buyer is not entitled to sell the Goods or to deliver them, dispose of them, rent them to third parties or lend them, to pledge them to third parties or encumber them towards third parties in any other way. In that case, the Buyer is only entitled to use the goods within the framework of its normal company operations. If and for as long as ownership of the Goods has not been transferred to the Buyer, the Buyer shall immediately notify us in writing if the Goods are seized or a claim is made on any part of the Goods in any other way. In case of attachment, bankruptcy or (provisional) suspension of payments, the Buyer shall immediately inform the attaching bailiff, bankruptcy trustee or the administrator of our (ownership) rights.
In as far as we have sold the Goods to the Buyer on the basis of the quality description provided by our sub suppliers, we are not obliged to more than that indicated in the quality description. Except in case of intention or gross negligence on our part, our liability towards the Buyer, for any reason whatsoever, shall be limited to the purchase price of the Goods and we shall never be liable for any other, direct or indirect damage to the Buyer or third parties including consequential loss, immaterial damage, loss of profits or environmental damage. Except in cases of intention or gross negligence on our part, the Buyer shall indemnify us against any third-party claims, completely, with regard to the compensation of damage, costs or interests relating to the Goods or caused by the use of the Goods.
Conditions of Guaranty
Subject to the terms and conditions mentioned herein, the Goods are automatically covered by a guaranty for 24 months from the date of purchase (the guaranty period). We will repair any defect that arises due to faulty materials or workmanship free of charge during this Guaranty Period provided that the parts needed for such repair are fitted by an authorised Decoflame service technician.
If deemed necessary by us, the Goods shall be returned to our factory for repair, whereby we will arrange for shipment to the factory and return shipment to the Buyer at our cost. The Buyer is obliged, to safe-keep the original packaging of the Goods for this purpose. Should it fail to have the original packaging available for this purpose, we will offer to send adequate packaging at the Buyer’s cost. The Buyer is responsible for uninstallation and adequate packaging of the Goods and is liable for any damage occurring during uninstallation or transit resulting of failure to observe its obligations.
If during the Guaranty Period, the Goods become irreparable, we will exchange the defective product with a replacement at our sole costs. The faulty product must be returned to the factory in its original packaging. The Guaranty on the replacement product will continuously run from the original purchase date of the original product.
Notwithstanding anything to the contrary, should the Buyer or any other person use the Goods not adhering to the instructions given in the User Manual, or attempt to repair/amend the Goods, the Guaranty will be invalid. Any claims made under the terms of the Guaranty must be supported by the original invoice or bill of sale issued at the time of purchase, together with photographic evidence in high resolution of the fault/damage. In case the Goods were delivered to a newly constructed property, evidence must be provided of the date the appliance was commissioned.
This Guaranty covers the Goods for normal domestic use only. Any commercial use of the Goods is not intended and not covered by this Guaranty.
This Guaranty is non-transferable to any other person or for any other product.
This Guaranty is governed by Danish law, and is in addition to and does not diminish your statutory or other legal rights.
Exclusions of Guaranty
This Guaranty does not cover:
Any Faults that arise as a result of negligence, intentional abuse or improper use and/or installation i.e. use and/or installation which is not strictly in line with the instruction given in the User Manual which was part of the scope of delivery of the Goods. The replacement of cosmetic components or accessories or accidental damage.
Losses caused by unforeseeable events (including but not limited to floods, lightning storms, frost or other bad weather conditions, acts of God), fair wear and tear, glass, cosmetic damage, corrosion, oxidation or transit damage. Any commercial use of the Goods. Installation in any type of marine vessel (this exclusion includes longboats and barges) unless the parties have made an agreement to the contrary.
Claims arising from non-domestic use or use in a commercial environment.
Whilst all reasonable care will be taken during after sales service interventions, we will not accept liability for damage sustained to property other than as a result of our negligence in the process of moving or repairing the Goods.
In the course of the work carried out it may be necessary to remove the Goods from their installed position. If the Goods are glued, grouted or installed in any other way than described in our detailed installation instructions, it will be the Buyer’s responsibility to have the Goods removed.
If the Buyer does not fulfil any of its obligations arising from the agreement or fails to do so properly or not on time, as well as in case of bankruptcy, (provisional) suspension of payments, cessation or liquidation of the Buyer’s company, the Buyer is in default and we are entitled without notice of default or judicial intervention to suspend the execution of the agreement until we deem payment to be sufficiently guaranteed and/or dissolve the agreement in full or in part, without any obligation to pay the Buyer any compensation and without prejudice towards our further rights. In the cases listed in this paragraph, all our claims against the Buyer shall immediately and fully become payable and the Buyer is obliged immediately to return all Goods which have remained unpaid.
Applicable Law and Settlement of Disputes
The Danish Law governs the agreement between the parties and these General Terms and Conditions that are part of it. All disputes which occur as a result of the agreement or the General Terms and Conditions shall be subject to the judgment of the Danish Court in Aalborg. Applicability of the “Vienna Sales Convention” is ruled out.
Should any provisions of these General Terms and Conditions be void or subject to annulment on the grounds of the applicable law, both parties shall consult with each other and agree on a provision that is permitted, and that as far as possible shall approach the objective of the original provision. The other provisions of these General Terms and Conditions shall remain valid and unaffected.