Terms and conditions of sale

Cynergy Europe ApS.
Standard Terms and Conditions of Sale
January 31, 2018 (Rev. 4)

1. Applicable Terms. These terms govern the sale of Products and services by Cynergy Europe ApS. Whether these terms are included in an offer or an acceptance by Cynergy Europe ApS, such offer or acceptance is conditioned on Buyer's assent to these terms. Any additional, different or conflicting terms contained in Buyer's request for proposal, specifications, purchase order or any other written or oral communication from Buyer shall not be binding in any way on Cynergy Europe ApS. Cynergy Europe ApS failure to object to any such additional, different or conflicting terms shall not operate as a waiver of these terms.

2. Pricing & Payment. The prices shall be: (a.) as stated in Cynergy Europe ApS’ proposal, or if none are stated, (b.) Cynergy Europe ApS' standard prices in effect at the time of release for shipment or provision of service. In the event of a price increase or decrease, the price of Products on order shall be adjusted to reflect such increase or decrease. This does not apply to a shipment held by request of Buyer. Products already shipped are not subject to price increase or decrease.
Discounts, if any, are as specified on the latest discount sheets issued from time to time. Cash discounts are not applicable to notes or trade acceptances, to prepaid transportation charges when added to Cynergy Europe ApS' invoices or to discountable items if there are undisputed past due items on the account. Cash discounts shall only be allowed on that portion of the invoice paid within the normal discount period.

(a) Payment - Unless otherwise stated, all payments shall be net 10 days from invoice date payable in the currency stated on the invoice.

(b) Credit Approval - All orders are subject to credit approval by Cynergy Europe ApS. The amount of credit or terms of payment may be changed or credit withdrawn by Cynergy Europe ApS at any time for any reason without advance notice. Cynergy Europe ApS may, in its discretion, withhold further manufacture or shipment; require immediate cash payments for past and future shipments; or require other security satisfactory to Cynergy Europe ApS before further service or shipment is made; and may, if shipment has been made, recover the Products from the carrier, pending receipt of such assurances.

(c) Installment Shipment - If these terms require or authorize delivery of Products in separate shipments to be separately accepted by Buyer, Buyer may only refuse such portion of such shipment that fails to comply with the requirements of these terms. Buyer may not refuse to receive any lot or portion of hereunder for failure of any other lot or portion of a lot to be delivered or to comply with these terms, unless such right of refusal is expressly provided for on the face hereof. Buyer shall pay for each lot in accordance with the terms hereof. Payment shall be made for the Products without regard to whether Buyer has made or may make any inspection of the Products. Products held for Buyer are at Buyer's sole risk and expense.

(d)Taxes, Shipping, Packing, Handling - Except to the extent expressly stated in these terms, Cynergy Europe ApS’ prices do not include any freight, storage, insurance, taxes, excises, fees, duties or other government charges related to the Product, and Buyer shall pay such amounts or reimburse Cynergy Europe ApS for any amounts Cynergy Europe ApS pays. If Buyer claims a tax or other exemption or direct payment permit, it shall provide Cynergy Europe ApS with a valid exemption certificate or permit and indemnify, defend and hold Cynergy Europe ApS harmless from any taxes, costs and penalties arising out of same. Cynergy Europe ApS ' prices do not include shipping or handling. Shipping and handling will be stated individually on each invoice.

(e) Finance Charge - Buyer agrees to pay FINANCE CHARGES on the unpaid balance of all overdue invoices, less any applicable payments and credits, from the date each invoice is due and payable at an ANNUAL PERCENTAGE RATE of the highest applicable and lawful rate on such unpaid balance.

(f) Disputed Invoice - In the event Buyer disputes any portion or all of an invoice, it shall notify Cynergy Europe ApS in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of the invoice. The undisputed portion shall be paid when due, and FINANCE CHARGE on any unpaid portion shall accrue, from the date due until the date of payment, to the extent that such amounts are finally determined to be payable to Cynergy Europe ApS.

(g) Collection – Upon Buyer’s default of these terms, Cynergy Europe ApS may, in addition to any other rights or remedies at contract or law, subject to any cure right of Buyer, declare the entire balance of Buyer’s account immediately due and payable or foreclose any security interest in Products delivered. If any unpaid balance is referred for collection, Buyer agrees to pay Cynergy Europe ApS, to the extent permitted by law, reasonable legal fees in addition to all damages otherwise available, whether or not litigation is commenced or prosecuted to final judgment, plus any court costs or expenses incurred by Cynergy Europe ApS, and any FINANCE CHARGES accrued on any unpaid balance owed by Buyer.

3. Delivery; Title; Risk of Loss. Product shall be delivered F.O.B. Cynergy Europe ApS point of shipment with title to the Product and risk of loss or damage for the Product passing to Buyer at that point UNLESS OTHERWISE STATED IN WRITING. Buyer shall be responsible for all transportation, insurance and related expenses including any associated taxes, duties or documentation. Cynergy Europe ApS may make partial shipments. Shipping dates are approximate only and Cynergy Europe ApS shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or Buyer's customers if Cynergy Europe ApS fails to meet the specified delivery schedule.

4. Deferment and Cancellation. Unless otherwise agreed in writing, Buyer shall have no deferment rights and Buyer shall be liable for cancellation charges, which shall include without limitation
 a) payment of the full product price for any finished Product or service work in progress;
 b) payment for materials ordered pursuant to a firm purchase order; and
 c) such other direct costs incurred by Cynergy Europe ApS as a result of such cancellation.

5. Force Majeure / Delays. If Cynergy Europe ApS suffers delay in performance due to any cause beyond its reasonable control, including without limitation acts of God, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, failure of normal sources of supply, or acts of government, the time of performance shall be extended a period of time equal to the period of the delay and its consequences. Cynergy Europe ApS will give to Buyer notice within a reasonable time after Cynergy Europe ApS becomes aware of any such delay

6. Buyer’s Requirements. Timely performance by Cynergy Europe ApS is contingent upon Buyer’s supplying to Cynergy Europe ApS all required technical information and data, including facility drawings, connected facility services such as air, water, power in case of service or installation and all required commercial documentation.

7. Limited Warranty. (a.) Limited Product/ Service Warranty Statements. For each Product or service purchased from Cynergy Europe ApS or an authorized agent, Cynergy Europe only provide warranty as per individual written agreement. No statutory warranty is in principal available on any equipment provided by Cynergy Europe ApS unless otherwise stated in writing.

 (b.) Remedies for Breach of Limited Warranty. Buyer's sole and exclusive remedies for any breach of the Limited Warranties are limited to Cynergy Europe ApS ' choice of repair or replacement of the Product, or non-conforming parts thereof, or refund of all or part of the purchase price. The warranty on repaired or replaced parts of the Product shall be limited to the remainder of the original warranty period. Unless otherwise agreed to in writing by Cynergy Europe ApS, (i) Buyer shall be responsible for any labor required to gain access to the Product so that Cynergy Europe ApS can assess the available remedies and (ii) Buyer shall be responsible for all costs of installation of repaired or replaced parts. All exchanged parts replaced under this Limited Warranty will become the property of Cynergy Europe ApS.

(c.) Transferability. The Limited Warranties are not transferable during the warranty period.

THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE CYNERGY EUROPE APS' SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITS OF LIABILITY SET FORTH IN SECTION 8 BELOW. CYNERGY EUROPE APS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.

8. LIMITATION OF LIABILITY. NEITHER CYNERGY EUROPE APS, NOR ITS SUPPLIERS, SHALL BE LIABLE, WHETHER IN CONTRACT, WARRANTY, FAILURE OF A REMEDY TO ACHIEVE ITS INTENDED OR ESSENTIAL PURPOSES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL THEORY, FOR LOSS OF USE, REVENUE, SAVINGS OR PROFIT, OR FOR COSTS OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE, OR FOR INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE, OR FOR CLAIMS BY BUYER FOR DAMAGES OF BUYER'S CUSTOMERS. CYNERGY EUROPE APS’ MAXIMUM LIABILITY UNDER ANY CONTRACT SHALL BE THE ACTUAL PURCHASE PRICE RECEIVED BY CYNERGY EUROPE APS FOR THE PRODUCT AT ISSUE ALONE. BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS ARTICLE ARE SEPARATE AND INDEPENDENT FROM ANY REMEDIES WHICH BUYER MAY HAVE HEREUNDER AND SHALL BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES SHALL BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF CYNERGY EUROPE APS HAS BEEN ADVISED BY THE BUYER OF THE POSSIBILITY OF SUCH DAMAGES.

9. Compliance with Laws. Buyer agrees to comply with all applicable laws and regulations relating to the purchase, resale, exportation, transfer, assignment, disposal or use of the goods.

10. Changes in Work. Cynergy Europe ApS shall not implement any changes in the scope of work unless Buyer and Cynergy Europe ApS agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change hereunder shall entitle Cynergy Europe ApS to an equitable adjustment in the prices and any time of performance.

11. Non-waiver of Default. Each shipment made hereunder shall be considered a separate transaction. In the event of any default by Buyer, Cynergy Europe ApS may decline to make further shipments. If Cynergy Europe ApS elects to continue to make shipments, Cynergy Europe ApS’ actions shall not constitute a waiver of any default by Buyer or in any way affect Cynergy Europe ApS’ legal remedies for any such default. Any waiver of Cynergy Europe ApS to require strict compliance with the provisions of this contract shall be in writing and any failure of Cynergy Europe ApS to require such strict compliance shall not be deemed a waiver of Cynergy Europe ApS’ right to insist upon strict compliance thereafter.

12. Final Written Agreement; Modification of Terms. These terms, together with any quotation, purchase order or acknowledgement issued or signed by Cynergy Europe ApS, comprise the complete and exclusive agreement between the parties (the “Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by Cynergy Europe ApS. These terms may only be modified by a written instrument signed by authorized representatives of both parties.

13. Assignment. Neither party may assign the Agreement, in whole or in part, nor any rights or obligations hereunder without the prior written consent of the other; provided however that Cynergy Europe ApS may assign its rights and obligations under these terms to its affiliates and Cynergy Europe ApS may grant a security interest in the Agreement and/or assign proceeds of the Agreement without Buyer’s consent.

14. Applicable Law and Jurisdiction. These terms are governed and construed in accordance with the laws of the Kingdom of Denmark, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. BUYER WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THESE TERMS.

15. Severability. If any provision of these terms is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired, and such provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law.

16. Export Compliance. Buyer acknowledges that Cynergy Europe ApS is required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal, and usage of the Products provided under the Contract, including any export license requirements. Buyer agrees that such Products shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance by Cynergy Europe ApS of its obligations hereunder that compliance with such export laws and regulations be maintained at all times. BUYER AGREES TO INDEMNIFY AND HOLD CYNERGY EUROPE APS HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.

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