- Scope of Applicability
1.1 These General Terms and Conditions of Sale (“GTCS”) apply to all
sales of goods by Profound Actives Europe ApS (hereinafter referred to as
PACE) notwithstanding any conflicting, contrary or additional terms and
conditions in any purchase order or other communication from You. No
such conflicting, contrary or additional terms and conditions shall be
deemed accepted by us unless and until we expressly confirm our
acceptance in writing.
1.2 We reserve the right to change these GTCS at any time. You will
have thirty calendar days’ notice of any changes by posting notice on our
- Offers, Purchase Orders and Order Confirmations
2.1 All offers made by PACE are open for acceptance within fifteen
calendar days from the date of issue, unless otherwise specifically stated
therein, and is subject to the availability of the goods offered.
2.2 All purchase orders issued by you shall specify as a minimum the
type and quantity of goods requested, applicable unit prices, delivery place
and requested delivery dates. No purchase order shall be binding on PACE unless and until confirmed by us in writing.
2.3 Any order delivered by PACE is subject to compliance with the specification issued. The Costumer must ensure such compliance by assessing the batch specific CoA (Certificate of Analysis) delivered electronically together with the quotation or order confirmation at the latest. In case of any doubt of compliance PACE must be contacted immediately. By accepting the quotation Costumer accept the quality of the ingredient to be acceptable provided compliant with the CoA.
2.4 If further analysis is required in order to ensure legal compliance in the EU the customer must inform PACE about this not later than 2 (two) weeks after receipt of the batch in question. Costumer and PACE will together decide any means necessary to verify compliance or not.
2.5 PACE is not responsible for the Costumers internally or externally related costs no matter the type of analysis found suitable unless agreed upon in writing prior to any specific analysis to be performed.
- Prices and Terms of Payment
3.1 The prices for goods shall be those set forth in the order confirmation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
3.2 Unless expressly stated otherwise in our order confirmation, payment for goods shall be made cash in advance without offset or deduction.
3.3 In order to receive or maintain any credit facility agreed upon You must submit any such financial information from time to time as may be reasonably requested by us for the establishment or continuation of payment terms. We may in our sole discretion at any time change agreed payment terms without notice by requiring other terms of payment if deemed necessary by us.
3.4 If you fail to pay any invoice within seven calendar days of the due date of payment, we may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to you within seven calendar days of the expiration of the grace period. Further, we may charge you interest from the due date to the date of payment at the rate of 1,5% per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which we are or may be entitled at law or in equity.
3.5 Any goods shall remain vested in us and shall not pass to you until
the goods have been paid for in full. If you fail to pay any invoice
within fourteen calendar days of the due date of payment, we may
retake the goods covered by the invoice. You must insure all goods
delivered to their full replacement value until title to the goods has
been transferred to you.
- Terms of Delivery
4.1 Unless otherwise confirmed by PACE in writing, terms of
delivery is: EXW (Incoterms 2010).
4.2 All dates quoted for delivery of the Goods shall be approximate
only, and PACE shall not be liable for any losses or damages
suffered by the Customer due to any delay in delivery or non-
delivery of the Goods howsoever caused.
4.3 If the Customer fails to take timely receipt of the Goods – or if,
where the Customer is to give delivery instructions, the Customer
fails to give any such instructions – PACE may at its discretion either extend the time of delivery or shipment of the Goods, storing the Goods at the Customer’s risk and cost until actual delivery or cancel the Contract or any part thereof, in either case without prejudice to any other right or remedy available to PACE.
4.4 Partial shipment or partial delivery and/or transshipment shall
be permitted. Each partial shipment or delivery shall be regarded as
fulfilment of a separate and independent Contract.
4.5 Risk of damage to or loss of the Goods shall pass to the
Customer according to the term of delivery as defined in the entirety of Clause 4 and clause and 5.1, or if you wrongfully fail to take delivery of the Goods, at the time when PACE has tendered delivery of the Goods.
4.6 The Customer undertakes to abide strictly to the instructions
from PACE in respect of the customs handling of the Goods and to
provide to PACE, as and when requested by PACE, all relevant
documents, including but not limited to export/import documents
from EU member states and/or third country required for the
entitlement to export refunds or other subsidies. The Customer shall
be liable for and shall hold PACE and its affiliates harmless from
and against all costs and losses suffered by or incurred to PACE and
its affiliates as a result of the Customer’s breach of this undertaking.
- Acceptance of goods
5.1Any goods delivered are preapproved in terms of technical
quality by costumer provided compliant with the CoA supplied with
the quotation or order confirmation. You must inspect goods
delivered upon receipt. You are deemed to have accepted goods
delivered unless written notice of rejection specifying the reasons
for rejection is received by us within 5 (five) calendar days after
delivery of the goods.
- Limitation of Liability
6.1 PACE is not liable for the compliance of the Goods with the
requirements of statutes, administrative rules and/or
regulations applicable in the country of delivery and
undertakes no risk or liability in respect hereof.
6.2 The Customer shall be responsible for complying with any and
all legislation, administrative rules and/or regulations governing the
importation of the Goods into the country of distribution and the
subsequent processing, marketing, distribution, resale and/or use
6.3 If the Goods are non-conform due to circumstances for which
PACE is liable, the Customer may reject such Goods. PACE, at its
discretion, then may either issue a credit note in respect of such non-
conforming Goods, make a deduction in the price of the Goods
corresponding to the reduced value of the Goods, or replace the non- conform Goods. NO further remedy is available to the Customer in the event of nonconformity of the Goods, howsoever caused.
Non-conforming Goods rejected by the Customer are the property of PACE and shall, at PACE’s request, be made available to PACE. Unless PACE select to take back non-conform Goods, such Goods shall be disposed of by the Customer for PACE’s risk and account in the manner directed by PACE, always provided that the Customer shall use all commercial efforts to mitigate the costs of such disposal.
6.4 PACE SHALL NEVER BE LIABLE FOR ANY OPERATING LOSS,
LOSS OF ORDERS, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF
TIME, LOSS OF PUBLIC SUBSIDIES, LOSS OF GOODWILL OR FOR
ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR
DAMAGES WHATSOEVER, HOWSOEVER CAUSED.
6.5 PACE is not liable for the fitness for intended purpose of the Goods
and the Customer undertakes the risk and liability that the Goods are suitable for the purpose for which they are marketed and/or used.
6.6 Unless otherwise confirmed in writing by PACE, PACE shall at all times without incurring liability be entitled to modify or amend the specifications, production processes, packaging and/or labelling of the Goods without notice to the Customer.
6.7 Force majeure: PACE shall not be liable for a failure to perform any of PACE’s obligations or deemed in breach thereof, if PACE shows that the failure was due to an impediment beyond the control of PACE. The occurrence of such an event relieves PACE from damages, penalties and other contractual sanctions. Such events shall include in particular, but shall not be limited to strikes, lockouts, labor disputes, interruptions of operations, explosion, fire, natural disasters, governmental measures and restrictions imposed by national or foreign authorities, confiscation, embargoes, currency restrictions, lack of transport, veterinary diseases, malicious tampering, acts of terror, environmental measures and defective or delayed supplies from sub-contractors. Further, it postpones the time for performance for such period as may be reasonable, thereby excluding the Customer’s right, if any, to terminate or revoke the Contract.
6.8 Where the performance of a Contract becomes onerous on PACE due to the occurrence of events that fundamentally alter the preconditions of the Contract either because the costs of performance have increased or the performance for other reasons is subject to hardship PACE shall be entitled to withhold performance or be released of such Contract without incurring liability
- Product Liability
7.1 The Customer agrees to hold harmless and indemnify PACE, its affiliates and representatives against and from all costs, losses, liabilities, damages and expenses arising out of or resulting from the death of or injury to any person or from any damage to or loss of property due to the acts and/or omissions of the Customer.
7.2 PACE shall only be liable for physical injury and/or damage to property caused by the Goods if it is proven that the injury or damage is attributable to PACE or such liability follows from applicable mandatory law.
7.3 PACE SHALL NEVER BE LIABLE FOR ANY OPERATING LOSS, LOSS OF ORDERS, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF PUBLIC SUBSIDIES, LOSS OF GOODWILL OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER, HOWSOEVER CAUSED.
7.4 Recall: In the event of a recall of the Goods instigated by PACE or a competent authority the Customer shall in consultation with PACE take all necessary actions that are appropriate in the circumstances. These may include, without limitation, to stop delivery of the Goods and to recall the Goods from warehouses, distributors and retailers.
The Customer shall not interfere with the recall proceedings, which shall be controlled by PACE only, and shall not make public any actual or
planned recall of the Goods, except as provided by applicable
mandatory law or as so instructed by PACE.
8.1 If any provision contained in these Terms should be held to be
void or unenforceable, the validity of the other provisions shall not
be affected thereby.
8.2 No waiver by PACE of any breach by the Customer, or failure
by PACE to insist on the Customer’s performance of obligations
shall be considered a waiver of any subsequent breach of the same
or any other provision.
8.3 The Customer shall hold in confidence and not disclose to any third party any confidential information disclosed by PACE. The Customer shall not use such information for the Customer’s own benefit or the benefit of any third party.
8.4 Nothing in the relationship between PACE and the Customer shall create an agency, partnership or joint venture between the parties and in specific the Customer shall not be entitled to make any representation or warranty on behalf of PACE.
- Governing Law and Jurisdiction
9.1 The validity, performance and construction of any Contract with PACE shall be governed by Danish law. Any disputes arising out of or in connection with any Contract or offer, quotation or order confirmation issued by PACE or in connection with the delivery of the Goods to the Customer, including but not limited to disputes relating to the construction of these Terms, shall be settled in accordance with Danish law.
9.2 Any dispute shall be settled before the courts of law in Denmark and legal proceedings shall be instigated at the Maritime and Commercial Court of Copenhagen (Sø- og Handelsretten).
9.3 Notwithstanding the above, PACE shall at all times at its discretion be entitled to initiate legal proceedings against the Customer in the country in which the registered office of the Customer is located.