Terms and conditions
Terms of sale and delivery
GØMA A/S, June 2021
1. Contractual basis
1.1. Unless otherwise agreed in writing, these general terms of sale and delivery (June 2021) apply to all agreements of sale.
1.2. This agreement of sale has been concluded between the Seller, who is a member of the Association of Danish Agricultural Machinery Dealers (the Seller) and a Buyer engaged in trade or business (the Buyer).
1.3. Where the Buyer disagrees with the content of the agreement of sale, he must raise an objection no later than 5 working days from conclusion of the agreement of sale, however, no later than at the time of delivery.
1.4. Any subsequent agreements are only binding if accepted in writing by both parties. Where the agreement of sale deviates from the wording of the acceptance of order, the agreement of sale will take precedence over the acceptance of order.
2.1. Prices of items that are not to be delivered with immediate effect have been agreed subject to no changes having been made to public dues, customs tariffs, rates of exchange, etc.
2.2. Where such changes have been made, the Seller is entitled to adjust the purchase price to compensate for the changes.
2.3. Where a price increase of more than 5% of the agreed price is charged to the Buyer, the Buyer is entitled to cancel the transaction subject to notice thereof being given by him to the Seller within 3 days from the Buyer having received notice of the changed price.
3. Delivery and risk
3.1. Unless otherwise agreed between the parties, delivery is effected ex the business address of the Seller.
3.2. Where agreement has been made to the effect that the Seller is to send the goods, the Buyer must pay all expenses of freight, shipment and insurance, if any. The Buyer bears the risk of any accidental loss or deterioration of the goods when the goods leave the Seller’s business address.
3.3. The Buyer undertakes to take delivery of the goods purchased within 6 days after the Seller has given notification to the effect that the goods are ready for collection.
3.4. Where delivery is postponed compared with the agreed time of delivery on account of circumstances for which the Buyer is responsible, the Seller is entitled to concentrate the delivery and notify the Buyer thereof. Subsequently, the Seller is entitled to submit an invoice, irrespective of whether the Buyer has collected the goods as agreed.
4. Seller’s liability in the event of delay
4.1. Unless otherwise expressly set out in the contractual basis, the time of delivery indicated by the Seller is approximate. The Seller may demand that the time of delivery be changed in connection with any change or addition to the order.
4.2. Buyer is under no circumstances entitled to claim compensation of any kind due to the Seller’s delay.
4.3. Where a delay occurs or delivery is rendered impossible owing to circumstances, including, for instance, strike, lockout, fire damage, lack of means of transport, defects in or delays in respect of services from sub-suppliers, which are not the fault of the Seller, and of which the Seller was not aware at the time of acceptance of the agreement of sale, the Seller will not be liable for any consequential losses, whether direct or indirect.
4.4. In the event of a delay caused by the reasons set out in clause 4.3, the Buyer is only entitled to cancel the contract if the goods purchased have not been delivered no later than 8 days prior to the Buyer’s season of use of the goods.
4.5. The Seller’s delivery obligation will be suspended for the duration of the delivery hindrance, see clause 4.3, and the Seller is entitled to cancel the purchase when the delivery hindrance has lasted more than 60 days, without this entitling the Buyer to claim compensation of any kind.
5. Service, complaints and defects
5.1. The Buyer undertakes to closely observe the instructions set out in the Sellers documentation, including brochures, directions, and any other written or oral information provided by the Seller on the use and maintenance of the goods purchased.
5.2. The Buyer must upon receipt, and prior to the use, adjustment or processing of the goods purchased, check whether the goods purchased correspond to the agreed quality and quantity and check for any defects.
5.3. Where the Buyer finds that the goods purchased are not in conformity with the contract, the Buyer must immediately submit a written complaint to the Seller with a description of the defect. A complaint of defects must be received by the Seller no later than 14 days from when the defect is or ought to have been discovered by the Buyer.
5.4. However, in connection with the purchase of new goods, including machines, electrical installations, tyres and tubes, any notice of a defect must, irrespective of its nature, be advanced no later than 12 months from the date of delivery, and as for the sale of new spare parts, no later than 6 months from the date of delivery, unless otherwise agreed in writing. As for seasonal machines delivered outside of the season applicable to the relevant machine, the deadline will, however, not start to run until the beginning of the next successive season.
5.5. As for new goods, the Seller must within the 12-month deadline replace parts that are defective owing to materials defects, installation errors or manufacturing defects. Replacement will not take place if the defect or error is due to the Buyer not having observed the Seller’s instructions, see clause 5.1, if replacement is requested due to ordinary wear and tear, if spare parts other than the original ones or those specified by the Seller have been used, or if repair has been carried out by a party other than the workshops approved by the Seller.
5.6. Expenses incurred in connection with a justified complaint must be paid by the Seller. The Seller is, however, not obliged to pay the installation costs in such instances where installation can normally be undertaken by the Buyer. If, upon delivery, the Buyer has had additional equipment installed, the Buyer himself must bear any extra expenses incurred as a result thereof in connection with the remedying of defects. The Seller reserves the right to invoice the Buyer for any expenses incurred in connection with unjustified complaints.
5.7. Where defects are demonstrated which may be asserted against the Seller, the Seller is entitled and obliged, at his own discretion, to either effect replacement, remedy the defect or grant the Buyer a proportionate deduction in the agreed purchase price within reasonable time.
5.8. The Buyer is not as a result of defects in the goods purchased or his own cancellation of the agreement entitled to raise a claim for compensation for any operating loss, loss of time, loss of profits or any other indirect loss, unless the
Buyer is capable of proving that the defect is due to gross negligence on the part of the Seller.
5.9. The Seller cannot be placed under an obligation to pay compensation of more than a total of DKK 100,000 per agreement of sale for any defects.
5.10. The entry of the Seller into negotiations with the Buyer with a view to finding an amicable solution to a complaint does not imply that the Seller has approved the complaint. Consequently, the Seller is still entitled to assert the agreed deadlines for complaints and limitations of liability against the Buyer.
6. Second-hand machines/machines accepted in exchange
6.1. In the event of sale or acceptance of exchange of second-hand goods, including machines, spare parts, etc., such goods have been traded “as is” without any liability and any right of complaint, but see the provisions set out below.
6.2. Where the selling party has neglected his duty to disclose material facts, or where the state of the machine etc. is significantly poorer than could have been expected taking into consideration the price and the circumstances in general, clause 6.1 will not apply.
6.3. In the event of sale or exchange of second-hand machines, the buying party is, however, entitled to make complaints during a period of no more than 4 months from delivery.
6.4. Unless otherwise agreed, the Buyer vouches for the kilometres/number of hours, year of the machine sold/accepted in exchange and for the machine being free from all charges and encumbrances.
7.1. Unless otherwise agreed in writing, payment is by cash on delivery.
7.2. Late payment is subject to payment by the Buyer of penalty interest at the rate of 2% for every month or part of a month from the date of delivery and until payment is effected plus a charge of DKK 300 for every written reminder of payment.
7.3. The Seller reserves the right to write off the Buyer’s payments in advance on any interest and costs chargeable to the Buyer, insurance premiums and any costs incidental to repair work or spare parts in connection with the goods purchased. Use of such payment in the manner indicated will not imply breach of the Buyer’s obligations, as the agreed repayment scheme will be extended correspondingly in accordance with section 28(3) of the Danish Credit Agreements Act.
7.4. Failure to pay after the due date specified in the invoice may result in the case being passed on to a lawyer without further notice, and the lawyer can charge collection fees in excess of what is stated in Executive Order No. 601 of 12th June 2002, or regulations that may replace this.
8. Credit sale, ownership reservation and obligation to insure
8.1. The Seller reserves the right of ownership of the goods sold until full, valid payment has been effected of the purchase price, interest, costs, etc.
8.2. In the event of a credit sale, the Buyer undertakes, upon request, to sign an agreement of sale, an insurance proposal, etc. prior to delivery. The Buyer is obliged to take out any necessary third-party liability insurance, all-risk insurance and fire insurance and is, upon request, obliged to provide proof of compliance of such obligation by presentation of policies and receipts of premiums paid. The Buyer undertakes to ensure that the Seller is entitled to assignment of any sum insured until the goods purchased have been paid in full. The sum insured serves as satisfaction in priority of the amount due to the Seller in so far as the sum insured is not spent on repair of the goods purchased.
8.3. The Buyer undertakes to keep the goods purchased in a reasonable state of repair and condition and satisfactory working order and must allow the Seller to inspect the goods purchased.
8.4. The Buyer is not entitled to sell, pledge or otherwise deal with the goods purchased in such a manner as will give a third party any rights to the goods purchased. In the event that the goods purchased are hired out or lent out, the Buyer is obliged to take out the extended insurance policies necessary, see clause 8.2.
8.5. The Buyer is not entitled to leave the goods purchased to any third party for the purpose of repair without having obtained written consent from the Seller, unless the repair work is paid for in cash.
8.6. The Seller must in the event of a permanent change of address inform the Seller thereof with immediate effect.
9. Product liability
9.1. Unless otherwise agreed in writing, the Seller’s liability for damage to property cannot exceed DKK 2m.
9.2. It has been agreed between the Buyer and the Seller that the Seller cannot at any time incur product liability exceeding what follows from the provisions set out in the Product Liability Directive.
9.3. The Seller is only liable for damage if the Seller has acted with gross negligence.
9.4. Notwithstanding clauses 9.1 – 9.3., the Seller is, however, under no circumstances liable for any indirect loss, including any financial loss, operating loss, loss of profits, loss of time, etc., unless the Buyer is able to prove that such loss is owing to gross negligence on the part of the Seller.
9.5. In so far as the Seller incurs liability towards a third party as a result of the Buyer’s use of, addition to, change to, scrapping of, disposal of, sale of, lending of, hiring out of, leasing of or any other use of the machine sold, the Buyer is obliged to indemnify the Seller if the liability exceeds the limits set out in clauses 9.1.- 9. 4.
9.6. The Buyer as well as the Seller undertake to have legal proceedings instituted against them at the same forum as is considering proceedings, if any, concerning product liability against a third party.
10.1 Any disputes concerning or arising out of this agreement must be settled according to Danish law by legal proceedings before the district court in the jurisdiction of the Seller.