Terms and Conditions - Custom-made Products

The following terms and conditions of sale and delivery apply to all quotations, sales and deliveries regardless of eventual contradictory or diversifying terms specified in the customer’s order or accept, unless an equivocal agreement has been made in writing, for all custom-made products, production orders and other non-standard orders.

1. Quotations, orders and acceptance

Orders and acceptance of quotations can only be accepted in writing and are binding on the part of the customer. Execution of an order is only binding on the part of Westpack (WP) when a written confirmation of order has been received by the customer. Unless the customer has informed WP of any discrepancies in the written confirmation of order, within three days of receipt, the confirmation of order will be considered to be concordant with the customer’s order.

Quotations from WP, which do not specify a particular acceptance date, will be rendered invalid in the event that an uncontradictory acceptance is not received by WP within a maximum of 30 days from the date on the quotation.

2. Westpack’s obligation

WP is obliged to supply the goods specified in the written confirmation of order. WP is obliged, in reference to these terms and conditions of sale and delivery and any specially agreed conditions, to supply goods or services of normal quality in respect of materials, manufacture, handling, packaging and storage. WP reserves the right to supply up to 10% more or less than the order specifies and to invoice the customer the amount supplied.

Unless forms, drawings, clichés, etc. have been supplied by the customer, these shall remain property of WP, regardless of who has paid the cost of the material. Regardless of ownership, forms, drawings, clichés, etc., will only be stored for a period of three years from the last supply date for goods to which the material is used. If the customer requests samples, sample prints, drawings, etc., WP will be entitled to invoice the customer for these services.

3. Supply and delivery time

Goods are delivered according to the INCOTERMS© in force at the time in question. The specific delivery terms are stated in the order confirmation from WP. WP may arrange transport of the goods on behalf of the customer. The total transportation costs will be invoiced to the customer according to volume and weight. Delivery dates are given in calendar weeks, and are determined by WP taking into account the conditions at the time of confirmation of order. WP reserves the right to alter delivery dates in the event that the prevailing conditions are changed in any way. In such case, WP is obliged to inform the customer of any such alteration and the reasons for such. In the event that the customer owes WP overdue payment for any previous supplies, WP will not be obliged to deliver any further goods or services until the overdue balance is paid. This applies regardless of any confirmation of order sent by WP to the customer. WP’s obligation to supply goods or services will not be restored until after any overdue balance has been settled.

In the event that any delay in delivery has been caused by force majeure (section 11), the delivery date will be delayed by the amount of time caused by the source of the delay. In event that delivery of goods or services has been delayed for a period exceeding 12 months, the customer or WP has the right to cancel the order without any obligation whatsoever. This condition will apply no matter if the reason for the delay arises before or after the original agreed delivery date. If for any reason WP cancels the order, WP is, however, not liable for any costs in connection with entering the agreement.

4. Claimant’s default

In the event that a customer does not take delivery of the goods after the agreed delivery date, or in the event that the customer requests that delivery be delayed, WP retains right to store the goods at the customer’s own risk and expense. In the event that delivery is delayed because of changes in prevailing conditions on the part of the customer - unless otherwise specified by WP in writing - the customer shall be liable for all payments to WP on the dates agreed in the written order confirmation. lf the customer for any reason, despite written requests from WP, fails to take delivery of any goods, even in the event that the goods in question have been specially manufactured on behalf of the customer, WP retains the right to sell the goods in question at the best possible price or discard the goods at the customer’s expense.

5. Prices

All prices include packaging, but are excl. of VAT or other applicable taxes. WP reserves the right to alter any price prior to delivery in the event of any increase in material costs, subcontract costs, taxes, duties, wages or exchange rates resulting in increased costs for WP. In the event that the goods specified on the order are altered in any way or if the costs are increased in any way as a result of any alterations to the original specified product requested by the customer, WP reserves the right to alter the agreed price accordingly.

6. Terms of payment

Terms of payment, calculated from the date of invoice, are specified in the written confirmation of order. In the event that payment is not received by the due date, WP reserves the right to charge interest at the rate of 2% per calendar month from the date that payment was due. Payment cannot be made by setting payments off against any amount owed by WP.

7. Shortages, claims and returns

The customer is obliged to check the goods upon receipt. In the event that the goods supplied are not of the usual quality in respect of material, manufacture, etc., and in the event that this has been caused by sub-standard materials or manufacture, WP can, at their own discretion, rectify the fault, exchange the goods or issue a credit note to the customer. WP’s obligation in respect of the above is conditional on receipt of a written complaint within 14 days from the date of receipt of the goods. Goods are returned to WP at the customer’s own risk and expense. WP is not responsible for damage to goods caused by improper handling, transport, storage or any other neglect by third parties outwith WP.

8. Product reference

WP reserves the right to exploit custom-made products as reference at fairs, in catalogues and at websites. WP must have written notification from the customer that the custommade product has been made for if the reference use cannot be accepted.

9. Custom-made designs

WP is copyright owner of all drawings, photos and samples made by WP until an order for the given product is received. Provided that the customer chooses another supplier for the custom-made design made by WP, WP reserves the right to invoice any costs connected with development of designs and samples to the customer.

10. Product liability

In the event of damage to goods, which according to type have been designated for commercial use, WP will be responsible subject to the following conditions. WP will not be responsible for any damage exceeding the maximum coverage of our product liability insurance. WP is not responsible for damage to products manufactured by the customer or products containing products manufactured by the customer unless responsibility can be allocated to WP according to the applicable product liability legislation. WP will only be
responsible for one year after delivery of the goods. WP is not responsible for damage to other property or movables caused while the goods are in the customer’s possession. WP cannot be held responsible for operational losses, losses in profit or other indirect losses resulting from WP’s product responsibility, delay or shortages in delivery.

If WP by court decision is imposed any product liability to a third party, the customer is obliged to indemnify WP for any losses. In the event of personal injury caused by a product and in the case of damage to goods, which are not normally used for commercial purposes, WP will be responsible in accordance with the valid Danish Goods and Services Liability legislation. If a third party makes a claim naming one of the parties as responsible, the party receiving the claim is obliged to immediately inform the other party. The customer shall let himself be summoned to the court examining claims for damages lodged against WP on the basis of damage allegedly caused by the goods delivered. Damages for personal injuries can never exceed the level of damages being in force according to Danish law.

11. Force Majeure

WP cannot be held responsible for shortages or delays in delivery caused by war, riots, civil unrest, governmental intervention or intervention by another public authority, fire, machine damage, strike, lockout, export and/or import restrictions, shortage of labour, fuel or any other reason, which lies outwith the control of WP, and which causes delay or prevents fabrication, or delivery of the goods ordered.

12. Limitation of responsibility

WP cannot be held responsible for operational losses, losses in profit or other indirect losses resulting from WP’s product responsibility, delay or shortages in delivery.

13. Law and venue

All disputes between the parties, which cannot be settled amicably, shall be settled in a Danish court applying Danish law, except from CISG as far as this is a part of Danish law. Any dispute shall be settled in Denmark either by WP’s venue or by arbitration at WP’s option. If WP chooses to settle any dispute by arbitration, court of arbitration shall consist of 3 members, who shall be appointed by the President of Western Division of the Danish High Court. One of these members – the chairman – has to fulfil the conditions being adjudicator, whereas the other two members have to be professionally qualified concerning the subject matter of the dispute.

Holstebro, 22 March 2013