General Conditions for Sale and Delivery
Click on the sections below to read Blue Wave A/S’s General Conditions for Sale and Delivery.
- These General Conditions shall apply when the parties agree in writing or otherwise thereto, including if Blue Wave A/S has referred to the General Conditions in tenders, order confirmations, invoices or other communication with the Purchaser. Deviations from the Conditions shall not apply unless agreed in writing.
- The good(s) and/or service(s) to be supplied under these conditions is (are) hereinafter referred to as the Product or Products.
- All information and data contained in product brochures and price lists are binding only to the extent that they are by reference expressly included in the contract.
- INCOTERMS 2020® ex works EXW Blue Wave A/S’ factory, Haderslev, shall apply, unless otherwise agreed.
- Blue Wave A/S may offer the additional service to the ex works term in clause 4 of allowing the Purchaser to use Blue Wave A/S’ freight agreement(s), Blue Wave A/S will pay freight for Purchaser’s account and recoup such freight costs by invoice. The remaining rights and obligations of Blue Wave A/S and the Purchaser will remain the same as set out in the official INCOTERMS® 2020 ex works term.
- Blue Wave A/S may offer the additional service to the ex-works term in clause 4 of sending the Product on behalf of the Purchaser to the Purchaser’s destination. The remaining rights and obligations of Blue Wave A/S and the Purchaser will remain the same as set out in the official INCOTERMS® 2020 ex works term.
- Partial shipments shall be permitted unless otherwise agreed.
- All orders placed will be charged with an environmental surcharge (at present 4 euro). Packaging, pallets and cartons will be charged accordingly to the usages for each order placed.
- Unless Blue Wave A/S has agreed in writing to a specific delivery date or time, the time of delivery of the Product stated by Blue Wave A/S is always estimated and subject to availability.
- In case delivery has not taken place within 20 working days of the estimated delivery date or time, then the Purchaser is entitled to terminate the contract regarding the delayed part of the order. In case delivery has not taken place within a specific agreed delivery date or time, then the Purchaser is entitled to terminate the contract regarding the delayed part of the order.
- Blue Wave A/S shall in no event be liable to pay damages resulting from a delayed delivery, unless Blue Wave A/S has caused the delay due to gross negligence or wilful misconduct. Termination according to clause 10 shall be Purchaser’s sole remedy in case of delay.
- The agreed time of delivery is always stated with reservation for delays due to force majeure, hardship, including labor conflicts and other reasons beyond Blue Wave A/S’ control. In such case, the time of delivery or completion will be extended for a reasonable period corresponding to the duration of such delay. Delivery or completion postponed for the reasons referred to here, shall in every respect, be considered as having been effectuated in due time.
- If a delay in delivery or completion, caused by reasons in clause 12, can be expected to last longer than 3 months, the Purchaser, as well as Blue Wave A/S, shall be entitled to cancel the agreement without paying compensation.
- The Purchaser is not entitled to return Products without prior acceptance from Blue Wave A/S regardless of the reason for the return. Unless Blue Wave A/S is liable for defects according to clauses 19-29, Products returned will be subject to a restocking charge of 30 % of current pricelist, but only if they meet the current specifications.
- Whatever the means of payment used, payment shall not be deemed to have been effected before Blue Wave A/S’ account has been fully and irrevocable credited.
- If nothing else has been agreed in writing, the terms of payment shall be 30 days net from date of the invoice.
- If the Purchaser fails to pay by the stipulated date, Blue Wave A/S shall be entitled to interest from the day on which payment was due. The rate of interest shall be as agreed between the parties. If the parties fail to agree on the rate of interest, it shall be at the rate stated on the invoice or else 1.5 per cent for each month. In case of late payment Blue Wave A/S may, after having notified the Purchaser in writing, suspend his performance of the contract until he receives payment. If the Purchaser has not paid the amount due within two months Blue Wave A/S shall be entitled to terminate the contract by notice in writing to the Purchaser and to claim compensation for the loss the Purchaser has incurred.
The Product shall remain the property of Blue Wave A/S until paid for in full to the extent that such retention of property is permitted by the applicable law.
- Blue Wave A/S shall, pursuant to the provisions of clauses 19-29, by repair or replacement of Blue Wave A/S’ choice, remedy any defect in the Product resulting from faulty design, materials or workmanship.
- Blue Wave A/S’ liability is limited to defects which appear within a period of two years from the date of delivery of the Product. If the Product is used more intensely than agreed or could be foreseen at the formation of the contract, this period shall be reduced proportionally.
- For repaired or replaced Products a new two years liability for defects notification period shall apply. The liability period defined in clause 20 shall be extended for other parts of the Product only by a period equal to the period during which the Product could not be used because of the defect.
- The Purchaser must examine the Product upon delivery in accordance with industry standards and before use and/or installation. The Purchaser shall notify Blue Wave A/S in writing of defect(s) in the Product within a reasonable time after the Purchaser has discovered it or ought to have discovered it and within two years from the delivery date.
- If the Purchaser gives such notice as described in clause 22, and no defect is found for which Blue Wave A/S is liable, Blue Wave A/S shall be entitled to compensation for the work and costs, which Blue Wave A/S has incurred as a result of the notice.
- In the event that the Product delivered by Blue Wave A/S is proved to be defective at the time of delivery and the notification time limits above in clauses 20, 21 and 22 are observed, Blue Wave A/S undertakes to replace or repair the defective Product at Blue Wave A/S’ choice within reasonable time.Costs for dismantling, re-installation and/or intervention in other equipment than the defective Product shall be borne by Blue Wave A/S, provided that Blue Wave A/S is liable in accordance with applicable law. Blue Wave A/S has the right to carry out dismantling, re-installation and intervention in other equipment in other equipment themselves or by a third-party appointed by Blue Wave A/S. To the extent Blue Wave A/S incurs costs in connection with the remedy that exceed the liability limitations amounts in clause 25a or costs for which Blue Wave A/S is not liable according to clause 25b (or other terms in clauses 19-29), the Purchaser shall bear such costs and will be invoiced by Blue Wave A/S for such costs.
- If Blue Wave A/S fails to fulfil his obligations under clause 24 within a reasonable time, the Purchaser may choose to carry out the necessary remedial work themselves (or by a third party) and/or purchase replacement Products from a third party. Blue Wave A/S is liable in accordance with applicable law for the direct costs and loss incurred by Purchaser. However, Blue Wave A/S’ liability is limited as set forth below:
- Blue Wave A/S’ liability per defective Product shall in no event exceed the highest amount of: i) 5 times the purchase price of the defective Product; OR ii) EUR 1,000. However, Blue Wave A/S’ annual aggregate liability for defects shall in no event exceed EUR 100,000.
- Blue Wave A/S is not liable for indirect loss, including loss of production, loss of profit, costs for lawyers and other advisers or any other consequential economic loss. Blue Wave A/S is not liable for the costs for sending out staff to defective Products (or the “End-Product” in which the defective Product is installed), or costs for tracing, examination, analysis, transportation and/or destruction of or the issue of notices regarding the defective Product of the End-Product.
- Defective parts which are replaced shall be placed at Blue Wave A/S’ disposal and shall become Blue Wave A/S’ property.
- Blue Wave A/S is not liable for defects arising out of materials provided by, or a design stipulated or specified by the Purchaser.
- Blue Wave A/S is only liable for defects which appear under the conditions of operation provided for in the contract and under proper use of the Product. Blue Wave A/S’ liability does not cover defects caused by occurrences after the risk in the Product has passed to the Purchaser. The liability does not e.g. cover defects which are caused by faulty maintenance or incorrect installation from the Purchaser’s side, by alterations undertaken without Blue Wave A/S’ consent in writing, or by faulty repairs by the Purchaser. Finally, Blue Wave A/S’ liability does not cover normal wear and tear or deterioration.
- Except as stipulated in clauses 19-28 above, the Purchaser can make no other claims regarding defective Products delivered by Blue Wave A/S. The limitations of Blue Wave A/S’ liability according to clauses 19-28 shall, however, not apply where Blue Wave A/S has been guilty of gross negligence and/or wilful misconduct.
- Personal Injury and Damage to Consumer Property:
Blue Wave A/S shall indemnify and hold the Purchaser harmless, if the Purchaser is liable to pay damages to any third parties for personal injury and/or damage to consumer property caused by the Product, provided that Blue Wave A/S is liable towards the Purchaser according to applicable law, including applicable law on product liability and/or tort liability. Blue Wave A/S’ liability for loss incurred by the Purchaser due to personal injury and/or damage to consumer property is not limited.
- Damage to Non-Consumer Property:
Blue Wave A/S shall indemnify and hold the Purchaser harmless, if the Purchaser incurs loss or is liable to pay damages towards third parties due to physical damage to non-consumer property caused by the supplied Product – including damage to the End-Product – provided that Blue Wave A/S is liable towards the Purchaser according to applicable law, including applicable law on product liability and/or tort liability.
However, Blue Wave A/S’ liability towards the Purchaser due to physical damage to non-consumer property shall not exceed EUR 1,000,000 (one million) per damage, and Blue Wave A/S’ aggregate liability towards the Purchaser per calendar year shall not exceed EUR 2,000,000 (two million). In case of claims made in consequence of more than one case of damage occasioned by the same liability entailing conduct and regarding more than one calendar year (“Series of Damage”) Blue Wave A/S’ aggregate liability towards the Purchaser for such Series of Damage shall not exceed EUR 2,000,000 (two million).
Blue Wave A/S is not liable for indirect loss, including loss of production, loss of profit, costs for lawyers and other advisers or any other consequential economic loss. Blue Wave A/S is not liable for the costs for sending out staff to defective Product(s) or the “End-Product”, or costs for tracing, examination, analysis, transportation and/or destruction of or the issue of notices regarding the defective Product or the End-Product.
The limitations of Blue Wave A/S’ liability shall not apply to the extent that Blue Wave A/S is guilty of gross negligence and/or wilful misconduct or to the extent such limitations is prohibited under mandatory law.
- If a claim for loss or damage as described in clause 30 and/or 31 is raised by a third party against either party, such party must forthwith notify the other party thereof.
- The Purchaser must indemnify and hold Blue Wave A/S harmless for any claims for damages, for which claim Blue Wave A/S is liable to pay damages towards the Purchaser’s customers or third parties, if such claim has been limited or excluded by Blue Wave A/S towards the Purchaser according to clause 31.
- Blue Wave A/S and the Purchaser shall be mutually obliged to let themselves 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. The liability between Blue Wave A/S and the Purchaser shall however be settled in accordance with clause 51.
- Either party shall be entitled to suspend performance of his obligations under the contract to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties such as fire, war (whether declared or not), extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstances referred to in this clause. A circumstance referred to in this clause which had occurred prior to the formation of the contract shall give right to suspension only if its effect on the performance of the contract could not be foreseen at the time of the formation of the contract.
- The party claiming to be affected by force majeure shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance. If force majeure prevents the Purchaser from fulfilling his obligations, he shall compensate Blue Wave A/S for expenses incurred in securing and protecting the Product.
- Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to terminate the contract by notice in writing to the other party if performance of the contract is suspended under clause 35 for more than six months.
If at any time during the term of the contract, Blue Wave A/S experiences any event (including but not limited to, changes in market conditions, changes in applicable rates, duties, taxes or changes relating to the Products and/or increases in the prices of energy, raw materials or other materials necessary for the manufacturer of the Products) that causes the Blue Wave A/S’ cost price and continued sale of the Products to the Purchaser to be uneconomical, or otherwise creates an economic hardship for Blue Wave A/S, then Blue Wave A/S may, at its sole option and upon written notice to the Purchaser, either
(i) increase in price of the Products to cover such event; or
(ii) terminate the Agreement upon thirty (30) days prior written notice to the Purchaser.
A rise in Blue Wave A/S’ cost prices of 25 % constitutes economic hardship in accordance with this clause 38.
This section shall be applied and construed separately from the force majeure clauses 35-37.
- Notwithstanding other provisions in these General Conditions regarding suspension, each party shall be entitled to suspend the performance of his obligations under the contract where it is clear from the circumstances that the other party will not be able to perform his obligations. A party suspending his performance of the contract shall forthwith notify the other party thereof in writing.
- Special products will be produced in accordance with special customer drawings signed by the customer.
- Special products are allowed a delivery tolerance of +10 %.
- If special products have been prepared/started up in production, the customer will cover all expenses by cancellation.
In case a third party asserts a claim against Purchaser based on Blue Wave A/S’ Product allegedly infringing such third party’s intellectual property rights (“IPR”), the Purchaser shall notify Blue Wave A/S hereof immediately.
- Blue Wave A/S has the right, but not a legal obligation, to take over the defense (including all costs and expenses) of such IPR-infringement claim against the Purchaser.
- In case of such third party IPR-infringement claim Blue Wave A/S is liable towards the Purchaser in accordance with applicable law, provided that the Product do in fact infringe such third party’s intellectual property rights. However, Blue Wave A/S’ liability towards the Purchaser due to a third party IPR-infringement claim, including any legal remedy available under applicable law and liability to pay damages for loss or costs incurred by the Purchaser, shall in no event exceed EUR 50,000 (fifty thousand) per infringement claim. Blue Wave A/S’ aggregate liability per calendar year towards the Purchaser due to third party IPR-infringement claims shall in no event exceed EUR 100,000 (one hundred thousand). The limitations in Blue Wave A/S’ liability regarding third party IPR-infringement claims shall not apply to the extent Blue Wave A/S has caused the infringement due to gross negligence or wilful misconduct, or to the extent such limitation is prohibited under applicable mandatory law.
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- The Purchaser undertakes not to use the Product in connection with any activities related to war, hostilities, revolution, rebellion, civil commotion, warlike operations, laying of mines, acts of piracy and/or violence, robbery, acts of terrorists and/or similar activities.
- Should the Purchaser sell, license or otherwise make the Product purchased from Blue Wave A/S available to third parties, the Purchaser undertakes to prevent that the Product is used for activities mentioned in clause 47 or related activities.
- The Purchaser undertakes not to sell, license or otherwise make the Product purchased from Blue Wave A/S available to third parties to the extent such transaction infringes any prohibitions of Council Regulation (EU) No 833/3014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine or other prohibitions.
- The Purchaser must indemnify and hold Blue Wave A/S harmless for all costs and loss incurred by Blue Wave A/S due to the Purchaser’s failure to comply with this clause 47-49.
- These General Conditions and either party’s rights and obligations regarding Blue Wave A/S’ sale and supply of the product to the Purchaser as well as any claim arising out of such sale and supply shall be governed and construed according to Danish law.
All disputes, controversies or differences that may arise between the parties, and which are not settled voluntarily, shall be settled:
- by the ordinary courts of Denmark with the District Court of Sønderborg as first venue, if Purchaser is domiciled within the EU or Norway, Iceland, Switzerland;
- by arbitration in Copenhagen by the Danish Institute of Arbitration (Danish Arbitration) in accordance with Danish Arbitration’s simplified rules of procedure, if Purchaser is not domiciled within the EU or Norway, Iceland, Switzerland.