Unless otherwise expressly stated in a written agreement between Tropica Aquarium Plants A/S (the "seller") and the buyer, these Terms & Conditions apply to all orders received by the seller and thus constitute an integral part of the agreement between the seller and the buyer.
No variation from these Terms & Conditions will be deemed to have been adopted, unless specifically confirmed by the seller in writing.
These Terms & Conditions apply notwithstanding any conflicting or deviating provisions in the order placed by the buyer, including any terms and conditions, confirmations or other documents issued or prepared by the buyer, regardless of the time of provision thereof by the buyer. Any failure by the seller to object to the content of such documents will not be deemed to constitute a waiver by the seller of these Terms & Conditions.
2. Orders and prices
Prices are calculated in accordance with the availability list applicable when the buyer places its order.
All prices are exclusive of VAT and subject to delivery terms Ex Works (Incoterms 2020).
The products are offered subject to prior sale. The seller is not responsible for availability, non-delivery by the seller’s sub-suppliers or misprints.
No final agreement will be deemed to have been made between the buyer and seller until upon the seller's final packaging of the order.
Cancellation of an order by the buyer is subject to express agreement with the seller.
4. Delivery, duty of inspection and notice of defects
Any delivery date stated by the seller is indicative only.
Delivery terms are Ex Works (Incoterms 2020), unless the seller agrees to dispatch the order.
The seller's agreement to dispatch orders is subject to express written agreement to that effect with the buyer. The seller will invoice the buyer accordingly. All transportation will take place using the seller's usual mode and route of transportation.
In case of dispatch of plants and Plant Care for delivery within the EU/EEA, delivery terms are DAP (Incoterms 2020) buyer's address, unless otherwise specifically agreed in writing between the seller and the buyer. Delivery takes place when the order is made available to the buyer for unloading, and consequently the buyer bears the risk of unloading.
In case of dispatch of plants for delivery outside the EU/EEA, delivery terms are CPT (Incoterms 2020) buyer's address, unless otherwise specifically agreed in writing between the seller and the buyer. Delivery takes place when the order is taken in charge by the first carrier, and consequently the buyer bears the risk in the order in transit.
The delivery terms for delivery of Plant Care outside the EU/EEA will be determined by written agreement between the seller and the buyer.
On receipt of the order, the buyer must check that the products are intact and undamaged. If not, the buyer must immediately give notice to the seller by endorsement on the delivery note to the driver and directly in writing to the seller together with photo documentation. If the buyer fails to give notice of a defect immediately on delivery of the order, the buyer will be deemed to have waived its rights with regard to such visible defects.
As regards other defects, the buyer must give notice of the defect to the seller in writing, supported by photo documentation, as soon as possible and no later than three days after receipt of the order. If the buyer fails to give notice of the defect within the period stated, the buyer will be deemed to have waived its rights with regard to any defects which the buyer could or ought to have discovered at such point in time.
The buyer is encouraged to adhere to the seller's use and care guides, which are available on the seller's website, and to obtain all necessary information thereon itself. The buyer is responsible for using and caring for the products so as to avoid any damage to the products.
5. Claimant's default
If delivery is not possible for reasons attributable to the buyer, the seller is entitled to invoice the buyer as if delivery had taken place. The risk in the products will pass to the buyer as if delivery had taken place.
Furthermore, the buyer must compensate the seller of any and all costs and losses incurred by the seller on account of delivery not being possible for reasons attributable to the buyer.
6. Payment, retention of title and provision of security
The terms of payment are stated on the invoice. In case of the buyer's failure to meet payment terms, the buyer will be liable to pay interest in accordance with the provisions of and at the rate stated in the Danish Interest Act (renteloven), unless a higher rate is specified on the invoice.
The buyer is requested to state its customer name and invoice number on all payments. The bank details for payments are stated on the invoice.
In case of late payment, the seller will initiate its chasing procedure.
If the buyer defaults on its payment obligations in relation to one or more orders, the seller will be entitled to hold back any other orders to the buyer, regardless of whether the orders are interconnected, and to freeze the buyer's account with the seller.
The buyer is not entitled under any circumstances to make any set-off against the seller's claim for payment or to withhold payment as security for any claim against the seller.
The seller retains ownership of the products, regardless of whether delivery has taken place, until the purchase price and any interest and other charges have been paid in full.
The seller is entitled at any time in connection with or after the seller's receipt of the buyer’s order to demand adequate security from the buyer for punctual payment of the purchase price, interest and other charges.
7. Processing of personal data
8. Intellectual property rights
All intellectual property rights in the products belong to the seller.
9. Liability for defects
If an order is defective and the buyer gives timely notice of defects, the seller will either (in its sole discretion) issue a credit note for the part of the order which is defective or in connection with delivery of the buyer's next order replace the part of the order which is defective.
No other remedies for breach will be available to the buyer, including claiming compensation from the seller.
10. Liability for delay
The seller is not liable for delay. Therefore, no remedies for breach will be available to the buyer in the event of delay. The buyer will not be entitled to claim compensation from the seller in this respect.
The seller is not liable for any delay during transit. Therefore, no remedies for breach will be available to the buyer in the event of delay during transit. The buyer will not be entitled to claim compensation from the seller in this respect.
If the seller bears all risks in the order while in transit and any damage or degradation occurs as a result of delay during transit and the buyer gives timely notice of defects, the seller will either (in its sole discretion) issue a credit note for the part of the order which is damaged or degraded or in connection with delivery of the buyer's next order replace the part of the order which is damaged or degraded. No other remedies for breach will be available to the buyer, including claiming compensation from the seller.
11. Force majeure
If delivery, conforming delivery or punctual delivery by the seller is prevented or delayed by events outside the seller's control which could not have been foreseen and cannot be overcome by the seller, this will constitute a force majeure event which does not constitute breach by the seller towards the buyer.
Force majeure events include, but are not limited to, war, terrorism, fire, labour disputes, import restrictions, export restrictions, interruptions in operation, transport difficulties, raw material shortage, acts of God, weather conditions, disease outbreaks, epidemics, pandemics, government intervention and orders or bans which affect the operations of the seller and/or of the seller's sub-suppliers.
In case of a force majeure event, the seller may (at its sole discretion) – by written notice to be sent to the buyer as soon as possible – postpone delivery by the number of days which the force majeure event lasts or cancel the buyer's order in whole or in part.
12. Product liability
The seller is liable for any damage caused by a defective product under the general rules of Danish law, always provided, however, that the seller's liability is limited to a maximum of DKK 500,000 per incident.
The seller assumes no liability for consequential damage or loss.
The seller assumes no liability for business interruption, loss of profits, loss of time, loss of goodwill or any other indirect and/or non-financial losses.
If liability is imposed on the seller for damage to a third party caused by a defective product, the buyer must indemnify the seller for any such liability imposed which exceeds the limitation of the seller's liability under the above provisions.
The buyer is obliged to accept legal action before the same court as the one considering claims for compensation raised against the seller by a third party due to an order delivered by the seller to the buyer.
13. Governing law and jurisdiction
Any disputes concerning the seller's delivery, the order and the parties' agreement, including these Terms & Conditions, are governed by Danish law without regard to any conflict of laws rules and CISG.
Any legal proceedings against the seller must be brought before the District Court of Aarhus.
Legal proceedings against the buyer may (in the seller's sole discretion) be brought before the District Court of Aarhus or the buyer's home court.
This is an English translation of the original Danish version of Tropica Aquarium Plants A/S's Terms & Conditions. In case of any conflict between the English translation and the Danish version, the Danish version will prevail.
Last updated on 16 March 2021