Terms & conditions of sale

1. Scope of application

1.1. These terms of sale ("Terms") govern all supply of products ("Products") by BM Silo ApS (Morrevej 7, Tvis, 7500 Holstebro, company registration number: 83891211) or an affiliate of BM Silo ApS (individually "BMS") to any buyer ("Buyer"), if the Products have been ordered by Buyer via BMS' webshop ("Webshop"). The Terms apply exclusively; Buyer's terms will not apply unless BMS has expressly accepted their application in writing.

1.2. BMS and Buyer may individually be referred to as a "Party" and collectively as "Parties".

2. Offers and contracts

2.1. Buyer shall place orders for Products via the Webshop. An order placed by Buyer constitutes a binding offer to form a contract and is irrevocable until Buyer has received an order confirmation via the Webshop.

2.2. A non-cancellable and binding contract ("Contract") is formed when Buyer has received an order confirmation via the Webshop and Buyer has paid the Price in accordance with clause 3.2.

2.3. The Contract consists of the Terms and the "Webshop Information" meaning: (i) the information stated in the Webshop; and (ii) the order confirmation received by Buyer via the Webshop. In case of conflict between the Webshop Information and the Terms, the Webshop Information take precedence.

2.4. Information in product catalogues, brochures, price lists, and advertising materials are for information purposes only and are not binding on BMS unless expressly stated in the Webshop Information. Buyer's requirements are only binding if stated in the Webshop Information.

2.5. The Products to be supplied under the Contract will be stated in the Webshop Information. If components or items, other than the Products, are needed to handle, install, commission, operate, maintain, or make other use of the Products, it will be Buyer's responsibility to obtain these at Buyer's own cost.

2.6. Assembly, installation, and commissioning of the Products after delivery will be Buyer's responsibility.

2.7. Until delivery of the Products, BMS may, at BMS' discretion, make changes to the Products. Buyer shall accept those changes, unless the changes result in Products that materially deviate from a material prerequisite for Buyer for ordering the Products, and BMS knew that prerequisite when issuing the order confirmation, in which case Buyer, as its sole and exclusive remedy, may terminate the Contract by written notice.

3. Price and payment

3.1. The price payable by Buyer for the Products supplied under the Contract ("Price") is stated in the Webshop Information and is accepted by Buyer when Buyer places the order for the Products via the Webshop. The Price is exclusive of VAT and statutory charges imposed after delivery in accordance with clause 4.1.

3.2. Buyer shall pay the Price in connection with placing the order for the Products in the Webshop, and the Price must be paid in accordance with the Webshop Information. When Buyer has paid the Price, BMS will commence processing the Contract.

4. Delivery and delay

4.1. Delivery takes place DDP (Incoterms 2020) the location stated in the Webshop Information. Risk of accidental loss and accidental deterioration of the Products passes to Buyer at delivery. BMS shall deliver its standard documentation package for the Products together with, or without undue delay after, delivery of the Products.

4.2. BMS shall use reasonable efforts to deliver the Products on the date stated in the Webshop Information ("Delivery Date"). BMS may, once per Contract, by written notice to Buyer postpone the Delivery Date to a new date that is reasonable in the circumstances, which new date will be considered the Delivery Date.

4.3. If the Products are not delivered on the Delivery Date, Buyer may, as its sole and exclusive remedy but subject to clause 4.4, claim delivery of the Products on a new date that is reasonable in the circumstances, which new date will be considered the Delivery Date.

4.4. If the delay exceeds 10 weeks beyond the Delivery Date, Buyer may, as its sole and exclusive remedy, by written notice to BMS terminate the Contract in respect of the delayed Products.

5. Warranty

5.1. A "Defect" in a Product exists if: (i) the Product does not conform to the specifications stated in the Webshop Information; and (ii) Buyer notifies BMS of the non-conformity without undue delay, and in any case no later than 8 days, after Buyer discovered or should have discovered the non-conformity, and in any event within 12 months after delivery of the Product.

5.2. BMS will not be liable for Defects: (i) in parts of the Products which are stated as wear parts in the Webshop Information; or (ii) which are caused by events, circumstances, acts, or omissions occurring after delivery of the Product and not caused by BMS.

5.3. In case of Defects for which BMS is liable in accordance with the Contract, BMS shall at its own cost and risk remedy the Defect by (at BMS' discretion) repair or replacement of the defective Product. If BMS determines that a Defect can be remedied by Buyer by use of parts supplied by BMS to Buyer, BMS' remedy obligation will be fulfilled when BMS has supplied those parts to Buyer. BMS will not be liable for cost incurred by Buyer for: (i) dismantling of parts of the Product; or (ii) installation of parts in the Product.

5.4. After a remedy of a Defect, BMS will be liable for the remedied part of the Product for 12 months after the completion of the remedy, however, BMS will in any case have no liability for Defects in a Product beyond 24 months after delivery of the Product.

5.5. This clause 5 comprises the Parties' sole and exclusive rights and obligations with respect to Defects.

6. Force majeure and hardship

6.1. An event or circumstance beyond a Party's control, which the Party could not reasonably have foreseen or prevented before the Contract was formed in accordance with clause 2.2, will be considered excusable for that Party if it prevents the Party from performing one or more obligations under the Contract. The Party so prevented shall notify the other Party in writing without undue delay of the occurrence and cessation of the event or circumstance. Each Party may terminate the Contract with immediate effect by written notice to the other Party if performance of the relevant obligation(s) is prevented in accordance with this clause 6.1 for more than 6 consecutive months.

6.2. In case of an event or circumstance beyond a Party's control, which the Party could not reasonably have foreseen or prevented before the Contract was formed in accordance with clause 2.2, and which makes the Party's performance of one or more obligations under the Contract unreasonably burdensome, the Party so affected may terminate the Contract with immediate effect by written notice to the other Party.

7. Liability and limitation of liability

7.1. Subject to clause 7.3, BMS will not be liable for: (i) consequential loss; (ii) loss of profit; (iii) loss of earnings; (iv) production loss; (v) loss of goodwill; (vi) penalties, liquidated costs or damages, or similar payments to third parties; or (vii) indirect loss, regardless of the legal basis for the claim.

7.2. Subject to clauses 7.1 and 7.3, BMS' aggregate liability under each Contract, including for Defects and damage caused by the Products, will be limited to the Price. Buyer shall not make claims against BMS, and shall indemnify BMS against, liability that exceeds this limitation and which BMS incurs.

7.3. Clauses 7.1 and 7.2 will not apply to liability caused by wilful misconduct or gross negligence.

8. Sanctions

8.1. Buyer shall not sell, deliver, transfer, export, or re-export, directly or indirectly, a Product: (i) to Russia or for use in Russia, if the Product is subject to Article 12g of Regulation (EU) no. 833/2014; nor (ii) to Belarus or for use in Belarus, if the Product is subject to Article 8g of Regulation (EC) no. 765/2006.

8.2. Buyer shall not use: (i) intellectual property rights or trade secrets sold, licensed, or otherwise transferred to Buyer by BMS; nor (ii) access rights or re-utilization rights to materials or information protected by intellectual property rights or as trade secrets; in each case in relation to goods falling within the scope of Article 12g of Regulation (EU) no. 833/2014, if those goods are intended directly or indirectly for sale, delivery, transfer, export, re-export to Russia or for use in Russia. Buyer shall prohibit sub-licensees of those intellectual property rights or trade secrets from those uses.

8.3. Buyer shall: (i) make reasonable efforts to ensure that the purpose of clauses 8.1 and 8.2 is complied with by third parties downstream in the supply chain, including resellers; and (ii) establish and maintain adequate monitoring mechanisms to identify behaviour by third parties downstream in the supply chain, including resellers, which could undermine the purpose of clauses 8.1 and 8.2. If Buyer discovers behaviour by third parties downstream in the supply chain, including resellers, which is non-compliant with or undermines the purpose of clauses 8.1 and 8.2, Buyer shall immediately notify BMS of this in writing.

8.4. If Buyer breaches this clause 8: (i) BMS may terminate the Contract with immediate effect by written notice to Buyer; and/or (ii) Buyer shall pay BMS 5% of the higher of: (a) the Price; and (b) the total purchase price of the Products sold, delivered, transferred, exported, or re-exported in breach of this clause 8.

9. Intellectual property and confidentiality

9.1. BMS retains, and Buyer obtains no, licences, patents, copyrights, trademarks, and other intellectual property rights in or to the Products or to documentation related to the Products, including specifications, drawings, calculations, and other information provided to Buyer in connection with the Contract.

9.2. Each Party shall not disclose information received from the other Party or related to the Contract to third parties unless disclosure is: (i) necessary to fulfil obligations under the Contract; (ii) required by law; or (iii) approved in writing by the other Party.

10. Miscellaneous

10.1. If a part of the Contract is invalid or unenforceable, this shall not affect the validity or enforceability of the remainder of the Contract. The Parties shall replace the relevant provision with a provision that has the same commercial intent and effect, and which is valid and enforceable.

10.2. Neither Party may assign the Contract in whole or in part without the prior written consent of the other Party, except that BMS may assign payment claims without Buyer's consent.

10.3. Amendments to the Contract are valid only if: (i) agreed in writing; (ii) expressly stated as amendments to the Contract; and (iii) signed by authorised representatives of the Parties.

10.4. The Contract is the entire agreement between the Parties with respect to the subject matter of the Contract and supersedes all prior representations, agreements, and understandings relating to that subject matter.

10.5. After the Contract is terminated, has expired, or is no longer in force, the following clauses will survive and remain in force: (i) clause 5; (ii) clause 7; (iii) clause 8; (iv) clause 9; (v) this clause 10.5; and (vi) clause 11.

10.6. Notices given under the Contract must be in writing and may be given by email or letter.

10.7. BMS may freely subcontract its obligations under the Contract; however, BMS will be liable for the subcontractor's performance to the same extent as for its own performance.

10.8. Advice, recommendations, and statements made by BMS in relation to the Contract or the Products are generic, not guaranteed, and made on a non-reliance basis. If Buyer acts or omits to act in reliance on them, Buyer does so at Buyer's own risk and responsibility.

11. Governing law and dispute resolution

11.1. Contracts are governed by Danish law. Danish private international law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.

11.2. Subject to clause 11.3, disputes arising out of or in connection with Contracts, including disputes concerning their existence, validity, interpretation, or termination, must be finally settled by arbitration administered by the Danish Institute of Arbitration in accordance with the rules of arbitration adopted by the board of the Danish Institute of Arbitration in force at the time of commencement of the arbitration proceedings. The arbitral tribunal must consist of one arbitrator. The seat of arbitration must be Holstebro, Denmark. The language of the arbitration must be English.

11.3. Notwithstanding clause 11.2, collection of undisputed payments may be performed in accordance with law at the District Court of Holstebro.