1 Orders and Contract Formation
1.1 B2B Purchaser may order Products from Kelsen by completing and sending to Kelsen an order in such form and having such content as Kelsen may from time to time require by notice to B2B Purchaser (“Order”). A Price List is not an offer.
1.2 Each Order constitutes a distinct and separate offer by B2B Purchaser to Kelsen to purchase the types and quantities of Products specified in the Order.
1.3 Within a non-binding target period of five (5) Business Days after its receipt of a valid Order, Kelsen shall in writing to B2B Purchaser either accept or reject the Order. As each Order constitutes distinct and separate offer to purchase, Kelsen may in its sole discretion accept none, any, or all Orders.
1.4 If Kelsen has not communicated its acceptance or rejection of an Order within ten (10) Business Days after receipt, Kelsen shall be deemed to have rejected the Order in full. If an Order is not valid, Kelsen shall advise B2B Purchaser of the reasons for the invalidity.
1.5 The parties agree that a rejection or failure to accept an order will not give rise to any action for which compensation will be payable, or other liability owed, to B2B Purchaser or any third party.
1.6 Each Order accepted by Kelsen will constitute a separate contract between Kelsen and B2B Purchaser (“Contract”), and these Terms of Sale shall apply to every Contract. If these Terms of Sale are attached to or incorporated by reference in, and made part of a written distribution agreement between Kelsen and B2B Purchaser, then the other terms and conditions of that agreement and any schedule(s) thereto will also apply to every Contract (together, the “Distribution Agreement”)
1.7 Purchaser agrees that the terms of any Contract shall operate to the exclusion of any printed or other terms and conditions issued by B2B Purchaser at any time. Any terms and conditions printed on or contained in the Order shall have no effect and shall not form part of the Order or any Contract, unless Kelsen has expressly agreed to them in writing prior to Kelsen’s receipt of the Order.
1.8 B2B Purchaser may not change or refuse to accept delivery of Products after a Contract for those Products is formed, except with Kelsen’s written consent.
2.1 Kelsen shall deliver the Products in accordance with the “Delivery Term,” which is as defined in any Distribution Agreement or, if none, is the delivery term specified in the applicable Price List or, if none there, then as otherwise mutually agreed in writing. If not so defined, specified, or agreed, then it will be CIP (Incoterms 2010) at the delivery address set out in the Contract.
2.2 B2B Purchaser agrees to accept incomplete or early delivery of Products.
2.3 Kelsen may suspend the delivery of any Products if B2B Purchaser is in breach of any Contract (even for other Products) or if a Force Majeure Event occurs.
2.4 Notwithstanding anything to the contrary, B2B Purchaser agrees that any suspension or delay in making any delivery hereunder, for any or no reason, will not constitute a breach of the relevant Contract nor give rise to an action or claim by B2B Purchaser or any other person for any costs, losses, or damages or for any other form of compensation or reimbursement whatsoever, unless such suspension or delay was from the fault or negligence of Kelsen, in which case B2B Purchaser’s sole remedy will be the right to cancel the relevant Order.
3 Inspection & Acceptance
3.1 Any claim by B2B Purchaser for incorrect orders, shortages, overcharges, non-conforming Product, and the like will be valid and timely only if made in writing reasonably identifying the non-conformance and received by Kelsen within ten (10) Business Days after Kelsen’s delivery or, if later, B2B Purchaser’s receipt of the Products from the carrier at their country of destination. B2B Purchaser shall be deemed to have accepted all Products if it has not made a valid and timely claim in respect of those Products.
3.2 Kelsen shall promptly consider any valid and timely claim made by B2B Purchaser. Kelsen shall not have any liability for any damage to or loss of any Products when that damage or loss occurred after Kelsen’s delivery of those Products in accordance with the Delivery Term. Any claims by B2B Purchaser for Products lost or damaged following delivery should be made to the relevant carrier. Kelsen shall provide such information as B2B Purchaser reasonably requests for such claim.
3.3 Return of Products to Kelsen by B2B Purchaser may only be made if Kelsen has agreed to that return.
4.1 The price of the Products shall be the price set out in the applicable Price List on the date that Kelsen issues the invoice for the Products. B2B Purchaser agrees to pay this price notwithstanding that, at the time of placement of the Order or time of making the Contract, the price for the Products was different. Prices include delivery in accordance with the Delivery Term, unless otherwise stated in the applicable Price List.
4.2 Unless otherwise specified in the Distribution Agreement (if relevant), Kelsen may from time to time change the prices for the Products immediately by issuing a new Price List to B2B Purchaser. Changes in prices will be effective from the date specified in the Price List.
4.3 Prices exclude, and B2B Purchaser must bear and itself properly pay, all import duties, tariffs, value added, sales, purchase and transfer taxes; stamp duties; and income tax attributable to B2B Purchaser's purchase and sale of the Products, and other similar taxes, duties or charges (except that the prices include and Kelsen or its Affiliate shall pay, any import duties and import value-added taxes if Kelsen has specifically agreed in writing that the Delivery Term is DDP, Incoterms 2010).
5.1 B2B Purchaser will pay for the Products supplied by Kelsen in accordance with the Payment Term.
5.2 Payment for Products must be made directly to the bank account of Kelsen as notified by Kelsen to B2B Purchaser from time to time, by wire transfer of immediately available funds in the currency used in the Price List.
5.3 If payment of the Products is not made by B2B Purchaser in full by the due date, then Kelsen may assess interest at the rate calculated interest calculated from the due date, in accordance with the Danish Interest Act, plus a minimum administrative and handling charge of €300 per month or part thereof.
5.4 All payments must be free of any setoff, deduction, counterclaim, collection charges, duties, taxes, or any similar charges and must be for the full amount of the invoice, less any credit note issued by Kelsen in respect of that invoice. If Kelsen has not shipped the complete amount of Product to which an invoice relates, B2B Purchaser shall not be entitled to deduct any amount from that invoice without first obtaining a credit note from Kelsen for the deduction.
5.5 Kelsen will be entitled to set off any amounts owed by Kelsen to B2B Purchaser against any amounts owed by B2B Purchaser to Kelsen.
6 Risk of Loss and Title to Products
6.1 The risk of damage, loss, or deterioration of the Products passes to B2B Purchaser on delivery.
7.1 Kelsen warrants and represents that the Products are of merchantable quality and comply with laws applicable to the Products at their place of manufacture as of the time of their delivery to B2B Purchaser.
7.2 Kelsen liability under the warranty provided in the immediately preceding clause is limited (at Kelsen option) to replacement of the relevant Products, supplying equivalent Products, or refunding the purchase price paid by B2B Purchaser for the Products. Any claim in respect of a breach of this warranty must be made within six (6) months of the date of delivery of the Products.
7.3 To the maximum extent permitted by law, all warranties and conditions, express or implied, are expressly excluded by Kelsen. If any condition or warranty is implied into any Contract by any law that may not be excluded by agreement, the liability of Kelsen for breach of that implied condition or warranty shall be limited, at Kelsen option to replacing those Products, supplying equivalent Products or refunding the purchase price paid by B2B Purchaser for the Products.
7.4 To the fullest extent permitted by law, Kelsen will not be liable to B2B Purchaser for any loss except as specified in these Terms of Sale. Without limitation, Kelsen will not be liable for loss of profit, loss of revenue, loss of reputation, or other economic loss; indirect or consequential loss; special, general or other damages; or other expenses or costs arising out of any breach of any Contract or any common law duty (including negligence) by Kelsen, its agents or employees.
8 Definitions & Interpretation
8.1 “Business Day” means each day other than Saturday, Sunday, or a public holiday in Denmark.
8.2 “Contract” has the meaning given in clause 1.6 of these Terms of Sale.
8.3 “Delivery Term” has the meaning given in clause 2.1 hereof.
8.4 “Distribution Agreement” has the meaning given in clause 1.6 hereof.
8.5 “Force Majeure Event” means any event beyond the reasonable control of Kelsen, including acts of god, governmental intervention, failure by suppliers to Kelsen, and strikes, lock-outs, and other industrial disputes.
8.6 “Order” has the meaning given in clause 1.1 hereof .
8.7 “Payment Term” means the payment terms set out in any Distribution Agreement, if relevant, or in the absence thereof, as specified in the relevant Price List, or as otherwise agreed by the parties in writing. If not so set out, specified, or agreed, the “Payment Term” shall be net 30 days from the date of invoice.
8.8 “Price List” means the most recent price list or lists for the Products issued to Purchaser in accordance with any Distribution Agreement or, if none, as otherwise issued by Kelsen in its sole discretion from time to time.
8.9 “Product” means any product listed in any current Price List (unless otherwise specified in the Distribution Agreement, if relevant).
8.10 Every Contract and these Terms of Sale are governed by the laws of Denmark, without regard to conflicts of laws rules under such laws and excluding the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the Maritime and Commercial Court in Copenhagen, and any dispute arising out of or in connection with any Contract or these Terms of Sale, including disputes relating to its or their existence or validity, must be resolved by that court. If it is determined that this court lacks jurisdiction, then each party submits to the exclusive jurisdiction of the Danish courts.
End of Kelsen Terms of Sale; Updated March 2017