TERMS AND CONDITIONS OF SALE
1. APPLICABILITY & SCOPE
All deliveries of products and services (“Products”) from WEST-MARINE A/S (“WEST-MARINE A/S”) to any customer
(“Customer”) shall be governed exclusively by these Terms and Conditions of Sale (“Terms and Conditions”).
WEST-MARINE A/S’ deliveries to Customer’s is expressly conditioned upon Customer’s acceptance of these Terms and
Conditions and no addition to or modification shall be binding on WEST-MARINE A/S unless expressly agreed to in writing.
2. ORDER CONFIRMATION
WEST-MARINE A/S shall not be deemed to have accepted a purchase order until written confirmation of the order from
WEST-MARINE A/S has been sent to Customer or WEST-MARINE A/S has received written, timely and unconditional
acceptance from Customer corresponding to WEST-MARINE A/S’ quotation
3. TERMS OF DELIVERY
Risk of Loss: Unless otherwise expressly agreed, delivery terms shall be EXW (Ex Works), as per latest INCOTERMS
Edition, with risk of loss passing to Customer when ready for dispatch at WEST-MARINE A/S’ warehouse. Customer will be
informed about readiness for dispatch.
Responsibility: WEST-MARINE A/S shall not be responsible for damage incurred during transportation. Claims for lost or
damaged shipments shall be filed directly to the carrier by Customer. WEST-MARINE A/S shall not be liable for any damage
occurring as a result of late delivery or lost shipments. Any discrepancies in shipment must be reported within 5 working days
All WEST-MARINE A/S prices are exclusive of VAT, carriage, tariffs, charges, other duties, etc. Prices are not including
installation costs unless expressly agreed to in writing.
Sufficient packing is included in the offered price and will not be credited if returned.
6. PAYMENT TERMS
Subject to credit approval by WEST-MARINE A/S, payment terms are net cash unless otherwise agreed. Should WESTMARINE
A/S fail to approve Customer’s credit or should WEST-MARINE A/S reverse its approval of credit for any reason
whatsoever, the terms of payment, at WEST-MARINE A/S’ option, shall be full advance payment prior to shipment. WESTMARINE
A/S reserves the right to withhold any and all shipments if Customer’s account is past due. The purchase price shall
be paid in full without regard to any setoffs claimed by Customer.
In case of late payment as per the invoiced payment terms, WEST-MARINE A/S is entitled to receive default interest rate on
overdue payment amounting to the at any time valid official bank rate plus 9% p.a.
7. RETENTION OF TITLE
The delivery will remain the 100% property of WEST-MARINE A/S until full payment has been received. WEST-MARINE A/S
is furthermore permitted to withhold the delivery until full payment has been received.
Customer agrees to provide WEST-MARINE A/S with its assigned tax exemption number. Customer agrees to pay, in
addition to the purchase price, all applicable sales, use, excise, value added or other similar taxes.
9. PRODUCT ALTERATIONS
Provided that no agreed technical specification is changed, WEST-MARINE A/S reserves the right to make alterations to
Products without notice.
WEST-MARINE A/S warrants that all Products will be free from defects in design, materials or workmanship for a period of 12
months from the date of delivery.
Under this warranty, WEST-MARINE A/S’ full and exclusive obligation shall be to repair or replace any Product, that
according to WEST-MARINE A/S’ investigations during the warranty period is found to be defective in design, materials or
workmanship, subject to Customer’s forwarded claim (see § 11 below) within 12 months from delivery of the Product.
If a Product or parts thereof prove to be defective, WEST-MARINE A/S is, free from liability, entitled to elect to 1) remedy the
defect, 2) replace the Product with Product of a similar quality, or 3) cancel the relevant agreement and return the purchase
price received on surrender of the Product delivered.
The repair is to be carried out at WEST-MARINE A/S unless WEST-MARINE A/S considers it more appropriate to let the
repair carry out at the buyer’s or elsewhere.
If WEST-MARINE A/S’ investigations show that the Product has no defect, the Product is returned to the Customer. Freight
and insurance to be paid for by the Customer as well as West-Marine A/S’s time spent for investigation . If a warranty related
Product defect is found, WEST-MARINE A/S returns the repaired or forwards a replacement Product to the Customer and
take over exchanged parts or the defect Product. WEST-MARINE A/S pays for freight and insurance. The Customer cannot
make any further claims against WEST-MARINE A/S due to defect Products.
WEST-MARINE A/S shall not be obligated to refund the purchase price, nor shall WEST-MARINE A/S be obligated to pay for
any labor cost or other costs associated with the removal of the defective Products or the reinstallation of those Products. No
warranty coverage will be provided for Products that have been altered, used for a purpose other than that for which they
were designed or installed contrary to WEST-MARINE A/S’ or makers instructions.
WEST-MARINE A/S offers no warranties or representations, express or implied, as to the products, except as set forth
above. WEST-MARINE A/S hereby disclaims all implied warranties, including but not limited to, implied warranties of
merchantability or fitness for a particular purpose. In no event will WEST-MARINE A/S be liable for any lost profits or for any
direct, indirect, incidental, consequential, punitive or other special damages arising out of or related to its products regardless
of whether such damages are sought based on causes of action sounding in tort, contract, negligence, strict liability or breach
11. WARRANTY PROCEDURES
a) To make a claim under the express warranty set forth in paragraph 9, Customer must:
b) Notify WEST-MARINE A/S immediately of the alleged defect;
c) Provide the part number, serial number, and description of the problem of the potentially defective Product;
d) Obtain a Return Material Authorization reference from WEST-MARINE A/S, which shall be valid for 30 days;
e) Return the potentially defective Product, insurance and freight prepaid, with the outside of the package bearing the
required return reference to WEST-MARINE A/S,
f) Include a written detailed statement of the reason why the Product is being returned; and
g) Ship the Products free of extraneous equipment.
If a replacement Product is required, a Purchase Order must on request be provided to WEST-MARINE A/S to purchase the
replacement product. Only an already established customer to WEST-MARINE A/S may order the replacement Product. An
invoice will be created and mailed to the Customer upon shipment of the replacement Product. Provided the returned Product
complies with the limited warranty and not physically damaged, WEST-MARINE A/S will credit the invoice for the purchased
12. NON-WARRANTY RETURNS
Subject to prior approval by WEST-MARINE A/S, unused standard Products can be returned within one (1) month of the
WEST-MARINE A/S invoice date provided the Products are returned in original packaging and both Products and packaging
are free from defects. The Products must be returned to WEST-MARINE A/S with insurance and freight prepaid.
Products built or ordered to custom specifications or Products that have been modified by the customer cannot be returned
for credit under any circumstances.
13. CHANGE ORDER REQUEST & CLAIMANTS DELAY
An accepted purchase order that is scheduled to ship within the quoted lead time can be delayed once up to a maximum of
30-days. Orders outside of the quoted lead time can be changed or cancelled but must be confirmed by WEST-MARINE A/S
in writing. Cancelled orders for standard Products are subject to a charge up to 30% of the value. Customer specific Productorders
cannot be cancelled.
A delay caused by any kind of issue within the Customer’s control, including but not limited to the Customer’s change of
configuration or specifications of requirements, delay in delivery of technical specifications etc., West-Marine A/S’ delivery
time is extended by the duration of such delay.
If delivery of the Products is obstructed due to Customers inability of receiving or if Customer for other reasons refuses to
take delivery of the Products at the agreed delivery time, the Products will remain in West-Marine A/S’ warehouse or any
other place notified by West-Marine A/S at the Customer’s expense and risk. Furthermore the invoice will be issued as if
delivery has taken place and interest rate will be added.
14. PRICE ADJUSTMENTS
WEST-MARINE A/S reserves the right to adjust accepted prices for non-delivered Products in the event of alterations in rates
of exchange, variations in costs of materials, sub-suppliers’ price increases, changes in wages, state requisitions or similar
conditions over which WEST-MARINE A/S has no or limited control.
Prices for installation work, including turnkey project installation, has been given on condition that the Customer ensures that
the work can be accessed without hindrance throughout the installation period of WEST-MARINE A/S’s installers and that the
work can to be carried out without hindrance from the side of the work site. Additional costs arising due to delay, regardless
on reason, is the sole responsibility of Customer and will be invoiced to Customer.
15. GROUP SET-OFF
WEST-MARINE A/S, and any other company in the WEST-MARINE A/S Group, shall be entitled to set-off own claims against
the Customer, in the Customer’s possible claims against any of said companies.
16. PRODUCT INFORMATION
Any information – whether originating from WEST-MARINE A/S or a WEST-MARINE A/S business contact – including but not
limited to, information on weight, dimensions, capacity or any other technical data in catalogue descriptions, advertisements,
etc., shall be considered informative, and are only binding if and to the extent, that explicit referenc e on this is made in offers
and/or order confirmations. Specific demands from the Customer are only binding if and to the extent these have been
confirmed by WEST-MARINE A/S in writing.
17. CONFIDENTIALITY & INTELLECTUAL PROPERTY RIGHTS
General obligations. The following information shall be considered “Confidential Information” for the purposes of the
Conditions: (i) All information of WEST-MARINE A/S concerning employees, products, services, customers, suppliers,
contractors, other third parties conducting business with WEST-MARINE A/S or other technical and commercial matters, (ii)
the terms of an eventual separate Agreement, (iii) any information developed by reference to or use of WEST-MARINE A/S’
information referenced above and (iv) any information which according to applicable law is confidential whether in written,
oral or visual form disclosed by WEST-MARINE A/S to Customer in any relation. Such Confidential Information shall remain
the property of WEST-MARINE A/S and shall not be given or disclosed to any third party without WEST-MARINE A/S’s prior
written consent. Customer shall only use the Confidential Information for the purposes needed and shall limit internal
Required Disclosure. Nothing in the above may however be deemed or construed to prevent Customer from disclosing any
Confidential Information if such disclosure is for the purpose of complying with any law or court order.
Reference and advertising. Customer is not permitted without prior written consent from WEST-MARINE A/S to use WESTMARINE
A/S’s name or any commercial relation with WEST-MARINE A/S or a company associated with WEST-MARINE A/S
for the purpose of advertising or as a reference.
Industrial ownership. Any and all industrial and/or intellectual property rights including, but not limited to results, inventions,
improvements, and know-how, whether patent able or not, relating to WEST-MARINE A/S’s information, or use by the
Customer of WEST-MARINE A/S’s information, shall be the sole property of WEST-MARINE A/S.
All material related to a purchase or general corporation, such as but not limited to, documentation, drawings and software
handed over to or disclosed to the Customer shall remain the property of WEST-MARINE A/S, shall not be used by the
Customer for any other purpose than the intended, and shall be securely archived by the Customer. Such material shall be
marked by Customer as property of WEST-MARINE A/S.
At the request of WEST-MARINE A/S the Customer shall return all documentation and material, including copies, received
from WEST-MARINE A/S.
18. PRODUCT LIABILITY
Unless otherwise governed by mandatory legislation, the following applies:
WEST-MARINE A/S shall not be liable for any damage to real property or chattels caused by the Product after it has been
delivered and whilst it is in the possession of the Customer. Nor shall WEST-MARINE A/S be liable for any damage to
products manufactured by the Customer or to products of which the Customer’s products form a part. In no circumstances,
the customer shall be liable to reimburse operating loss, loss of time, loss of profit or other indirect loss (consequential loss or
The total liability which WEST-MARINE A/S may incur is limited to DKK 15 million in respect of each individual instance of
damage. A series of accidents arising out of the same fault or act of negligence shall for this purpose constitute one single
instance of damage.
The liability for WEST-MARINE A/S for each individual claimed property damage is limited to the amount paid by Customer
for the claimed damaged Product.
The Customer is obliged to enter into the same court or arbitration proceeding, which deal with a potential compensation
claim process against WEST-MARINE A/S concerning the Product or service work in question.
If WEST-MARINE A/S incurs liability towards any third party for such damage as described in the preceding paragraph the
Customer shall indemnify, defend and hold WEST-MARINE A/S harmless. Customer shall indemnify and hold WESTMARINE
A/S harmless for all claims arising from any damage resulting from the use or operation of the Products because of
any improper repair, maintenance or operation of the Products by Customer, the failure of Customer to adequately train
personnel in the operation of the Products, Customer’s failure to comply with applicable laws or regulations or otherwise. If a
claim for damage as described in this clause is lodged by a third party against either WEST-MARINE A/S or the Customer,
the respondent party shall immediately inform the other party thereof in writing.
The Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged
against one of them on the basis of damage allegedly caused by the Product.
19. SECONDARY DAMAGE
West-Marine A/S shall not be held responsible for any special, indirect, consequential, punitive or exemplary damage or loss,
which might arise out of any breach of warranty, faulty products, delay in the delivery of the products, product liability, recall
or otherwise, irrespective of the cause, including but not limited to, loss of production, loss of profit and loss of goodwill.
20. MANDATORY LIABILITY
Nothing in these Terms (including but not limited to the exclusions and limitations in clause 17 to 18) shall operate in order to
exclude or limit the liability of either party to the other for death or personal injury arising out of its negligence, fraudulent
misrepresentation or for any other liability which cannot be excluded or limited by law.
21. NOTICE OF CLAIMS
Claims or complaints as to defects of the Products or other claims shall be submitted in writing by Customer to WESTMARINE
A/S without undue delay.
22. RESTRAINT ON RESALE OF PRODUCTS AND USE FOR CERTAIN PURPOSES
Customer is not allowed to use or to resell the Products for purposes which have any connection to chemical, biological or
nuclear weapons or for missiles which are capable of delivering such weapons. Customer is not allowed to sell the Products
to persons, companies or any other kind of organization if Customer has knowledge of or suspects that said persons or
entities are related to any kind or terrorist or narcotics activities. The Products may be subject to legal regulations and
restrictions and may therefore be subject to restrictions in case of sale to countries/customers covered by export and import
ban. These restrictions shall be observed in case of resale of the Products to such countries/customers.
Customer is not allowed to resell the Products if there is doubt or suspicion that the Products can be used for the purposes
mentioned in the preceding paragraph. If Customer receives knowledge of or suspects that the conditions in this clause have
been violated, Customer shall immediately inform WEST-MARINE A/S.
23. FORCE MAJEURE
No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including
fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether
war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist
activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of
electricity, and no other Party will have a right to terminate this Agreement under such circumstances.
24. PARTIAL INVALIDITY
If one or more of the terms and conditions in these Terms and Conditions or any part of a term is deemed invalid,
unenforceable, illegal or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall
not be affected or diminished thereby.
25. LAW, JURISTICTION & DISPUTES
Danish law applies.
Any commercial contractual corporation with Customer and any non-contractual obligations arising out of or in connection
herewith shall be governed construed and enforced in accordance with the laws of Denmark to the exclusion of any other law
and without regard to any conflict of law principles.
Any dispute shall be subject to arbitration arranged by The Danish Institute of Arbitration in accordance with the rules of
arbitration procedure adopted by The Danish Institute of Arbitration in force at the time when such proceedings are
commenced. The venue for arbitration shall be Copenhagen and the proceedings shall be conducted in Danish language.
The arbitral award shall be final and conclusive and binding on the parties.
WEST-MARINE A/S – 2018