General Terms of Sale and Delivery
These general terms (the “Terms”) apply to all sale and deliveries from Fynbo Foods A/S (“Fynbo Foods/we/us”) to our customers (“Customers”). No conflicting, contrary or additional terms and conditions shall be deemed accepted by Fynbo Foods unless accepted separately in writing. The Terms shall prevail any of the Customer’s terms regarding purchase, sale, etc.
Fynbo Foods reserves the right to change these Terms at any time.
2. Quotation, purchase order and order confirmation/proforma invoice
All written quotations from Fynbo Foods are open for acceptance within 30 calendar days from the date of issue, unless specified differently therein. If the offer has not been accepted within the said period, the offer lapses, and Fynbo Foods is not bound by the content.
All purchase orders issued by the Customer 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 Fynbo Foods unless and until confirmed by us in a written order confirmation/proforma invoice. In case of incompliance between the content of the purchase order and the order confirmation/proforma invoice, the content of the order confirmation/proforma invoice shall prevail.
Quantities and number of products stated in the order confirmation/proforma invoice are approximate, and deviations of +/÷ 5 % or less will not constitute a breach of contract. The Customer will only be charged for the quantities and number of products actually delivered.
The Customer’s cancellation of an order is subject to Fynbo Foods’ prior written acceptance. In such case, the Customer shall indemnify Fynbo Foods’ costs and losses due to the cancellation.
3. Prices and payment terms
The prices for products shall be those set forth in Fynbo Foods’ order confirmation/proforma invoice. All prices are exclusive of taxes, VAT, impositions and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
Prices stated in the order confirmation/proforma invoice are based on raw material prices, subsidies, exchange rates, customs duties, etc., applicable at the date of the quotation. In case of material changes in raw material prices, exchange rates, customs duties, etc., Fynbo Foods reserves the right to adjust the prices of the contract correspondingly.
Unless expressly stated otherwise in the order confirmation/proforma invoice, payment for products shall be made within 30 days (applies within Scandinavia and Europe) or with 50% by order and 50% arrival at port (applies outside Europe) without right to offset or deduction. Credit insurance is mandatory for all customers. If credit insurance cannot be obtained, full prepayment will be required.
Customers are obliged to submit financial information from time to time as may be reasonably requested by Fynbo Foods for the establishment or continuation of payment terms. Fynbo Foods may in its sole discretion at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or otherwise.
If the Customer fails paying an invoice within the deadline, Fynbo Foods is entitled to charge the Customer interest from the due date to the date of payment at the rate of 2 % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which Fynbo Foods is or may be entitled.
Further, Fynbo Foods reserves the right to cancel the contract and/or suspend further deliveries until all outstanding sums have been paid in full.
Title to products delivered shall remain vested in Fynbo Foods and shall not pass to the Customer until the products have been paid for in full. If the Customer fails to pay any invoice within 14 calendar days of the due date of payment, Fynbo Foods may – at the Customers expense – retake the products covered by the invoice. The Customer must insure all products delivered to their full replacement value until title to the products has passed to the Customer.
Unless expressly stated otherwise in our order confirmation/proforma invoice, all deliveries of products shall be made in accordance with the quotation and Incoterms 2010. The risk of loss of or damage to products shall pass to the Customer in accordance with the agreed delivery term.
The delivery dates of products shall be those set forth in our order confirmation/proforma invoice.
Fynbo Foods reserves the right to make delivery in instalments.
In case the Customer does not take delivery of the products on time, Fynbo Foods may choose either to cancel or maintain the order and the contract. Hereunder, Fynbo Foods will be entitled to store or sell the Customer’s products at the Customer’s expense and risk. In addition, Fynbo Foods may claim damages from the Customer.
The Customer undertakes to abide strictly by the instructions of Fynbo Foods in respect of customs handling of the products and – when necessary and requested – provide Fynbo Foods with all relevant documents in this regard.
It is the Customer’s responsibility that the products can be legally imported and customs cleared without issues. Any additional charges in this regard lie with the Customer.
The Customer is obliged to examine the products delivered immediately upon receipt. Further, the Customer is deemed to have accepted the products delivered unless written notice of rejection specifying the reasons for rejection is received by us within 5 calendar days after delivery of the products. Failure to comply with this deadline entails that the Customer has forfeited any rights to remedies for breach of contract in this regard. Rejected products are the property of Fynbo Foods and shall at Fynbo Foods request be made available to us.
Fynbo Foods warrants that upon delivery and for a period up to the expiry date (stated at the label of each product), the product will conform in all material aspects to the applicable and agreed specifications for such products and will be free from material defects in workmanship, material and design, however with respect of the product’s natural decline in organoleptic characteristics and colour. The warranty only applies to normal use of the Product and does not cover damage resulting from misuse, inappropriate storage, negligent handling, lack of reasonable maintenance and care and any kind of accident or abuse.
The warranty above lapses as soon as the primary packaging of the product (the jar, the bottle, etc.) has been broken.
With respect to products, which do not conform to the warranty, Fynbo Foods’ liability is limited, at our election, to (i)a proportional refund of the purchase price or (ii)replacement of such products; provided, however, that such products have been dispatched to us, along with acceptable evidence of purchase, within 14 calendar days after the Customer has discovered the inconformity/defect or ought to have discovered it. Documentation of dispatch is required.
We make no other warranties, hereunder we make no warranty with respect to the merchantability of products delivered or their suitability or fitness for any particular purpose.
7. Product liability
The Customer is obliged to indemnify Fynbo Foods for all costs, losses, liability, injuries and damages which are a consequence of death, personal injury or property damage caused by the Customers’ actions and/or omissions.
Fynbo Foods shall only be liable in case of personal injury and/or property damage if i) such injury/damage is caused by the products (documentation is required) and ii) such liability follows applicable, mandatory law. Fynbo Foods´ liability can never exceed the insurance limit of maximum DKK 5,000,000.
Notwithstanding the above, Fynbo Foods shall never be liable for indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, loss of goodwill, removal and/or reinstallation costs, reprocurement costs, recall and withdrawal costs, handling costs, penalties, loss of data, damage of reputation or loss of customers and consumers.
8. Liability and force majeure
Unless agreed otherwise, the products shall comply with the national laws and regulations of Denmark.
Fynbo Foods is not liable for the products’ compliance with applicable law, provisions, administrative regulations, etc., of the country of distribution. Such liability lies with the Customer and includes – but is not limited to – regulations regarding import, distribution, sale, marketing, etc.
Fynbo Foods shall not be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, loss of goodwill, removal and/or reinstallation costs, reprocurement costs, recall and withdrawal costs, handling costs, penalties, loss of data, damage of reputation or loss of customers and consumers.
The Customer’s recovery from Fynbo Foods for any claim shall never exceed the purchase price for the products (giving rise to such claim) irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
Fynbo Foods shall not be liable for any claims based on our compliance with the Customer’s designs, specifications, instructions, repair, modification or alteration of any products or use in combination with other products.
Neither Fynbo Foods nor the Customer shall be responsible or liable in any way for failure or delay in performing its obligations resulting from any cause of circumstance beyond its resonable control, including, but not limited to acts of God, fire, floods, earthquakes, poor harvest, natural disasters, insurrection, riots, war, explosion, acts of terrorism, strikes, lock-outs or other serious labour disputes, lack of deleveries from sub-suppliers, cevil commotion and acts of governmental authorities; provided that the party so affected provides written notice of such event to the other party without undue dely and no later than 2 weeks after the occurrence of such event ("Force Majeure"). The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such event has abated, the parties´respective obligations shall resume. In the event the interruption of the excused party´s obligations continues for a period in excess of 30 calender days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon 30 calendar days´prior written notice to the other party.
In case of recall of products, the Customer shall work together with Fynbo Foods in order to establish the necessary precautions. All information regarding the recall to any third parties, the public, etc., must be agreed with Fynbo Foods in advance.
9. Intellectual property rights
All intellectual property rights or other property rights to the products, including but not limited to trade mark, copyright, design, patent, recipes, labels, packaging, knowhow, etc., belongs to Fynbo Foods, and the Customer does not obtain any right, ownership or license to such rights. However, see clause 10 below regarding private label.
The Customer shall be liable for all costs and losses suffered by Fynbo Foods due to the Customer’s breach of this clause.
10. Private label
If Fynbo Foods produces and delivers products to the Customer under the Customer’s own brand, this clause also applies:
Unless agreed otherwise, the Customer shall – at its own expense – provide Fynbo Foods with artwork for design, layouts and other material being necessary for the printing of the labels and packaging of the product.
Unless agreed otherwise, Fynbo Foods will be entitled to purchase or arrange printing of at least the amount of packaging corresponding to the number of products according to the Customer’s order forecast.
Fynbo Foods produces and delivers the products on the Customer’s behalf and for the Customer’s account. Packaging, raw material and/or products which are not being used – no matter for what reason – are under the Customer’s risk and account. Upon the request of Fynbo Foods, such packaging and raw materials shall be reimbursed by the Customer at Fynbo Foods’ cost price, and the products shall be reimbursed at their purchase price. Upon the request of Fynbo Foods, the Customer shall provide appropriate security for this obligation.
The products shall be labelled under the trademark(s) and/or tradenames designated by the Customer. The Customer undertakes to hold Fynbo Foods harmless from and against all liability, costs, losses, damages or expenses suffered or incurred by Fynbo Foods due to any infringement of any third party’s intellectual property rights.
The products shall be packed and labelled as instructed by the Customer, and the Customer undertakes to hold Fynbo Foods harmless from and against all liability, costs, losses, damages or expenses suffered or incurred by Fynbo Foods due to any infringement or non-compliance of the packaging or labelling of the products with applicable legislation.
In the event, that the Customer has specified the choice of raw materials, ingredients, intermediates, packaging materials, etc., and/or suppliers of the above, the Customer shall assume the risk and liability in respect of the compliance, suitability and fitness for purpose of such raw materials, ingredients, intermediates, packaging materials etc.
Fynbo Foods and the Customer are under a duty of confidentiality meaning that both parties are obliged to keep confident all received confidential information (hereunder but not limited to business secrets, prices, supplier data, etc.) about the other party.
Should any provision of these Terms be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these Terms shall remain in full force and effect and shall be construed in accordance with the modified provision.
13. Governing law and venue
These Terms and all contracts entered into between Fynbo Foods and the Customer shall be governed by and construed in accordance with the laws of Denmark, notwithstanding any choice of law or conflict of law provisions specifying other choice of law. CISG (United Nations Convention on Contracts for the International Sales of Goods) shall not apply. Any suits, actions or proceedings that may be instituted by either of Fynbo Foods or the Customer against the other shall be instituted exclusively before the competent courts of Denmark.
Version 2, 11.02.2019