[1.1] All offers, deliveries and other services rendered by ECT A/S (hereinafter referred to as “Supplies”) are governed solely by the following terms and conditions, except where these terms and conditions are amended in writing or expressly excluded in writing by ECT A/S. These terms and conditions shall not apply to maintenance services of hardware and software, which shall be covered by separate agreements. Any contrary or deviating general terms and conditions of the Customer shall have no binding effect on ECT A/S, unless expressly consented to in writing by ECT A/S.
[1.2] There are no other oral promises or additional agreements. Amendments, deviations or alterations of these terms and conditions, orders and notices must be documented in writing to provide proof thereof.
2. Confidentiality – Information
[2.1] ECT A/S reserves any and all industrial property rights and/or copyrights pertaining to its cost estimates, images, drawings, calculations and other documents (hereinafter referred to as “Documents”) and technical information. The Documents and technical information shall not be made accessible to third parties without the prior written consent of ECT A/S and must only be made accessible to third parties who are rightfully involved in performing this contract. The confidentiality obligation ends, if the information contained in Documents and technical in-formation becomes publicly known.
[2.2] In any event of a breach of the provisions under No. 2.1 the breaching party shall pay the non-breaching party the amount of EUR 10.000,00 as liquidated damages for each such breach without the opportunity to argue that it was a continuation of the offence. ECT A/S reserves the right to claim higher damages.
3. Offer – Acceptance of Order
[3.1] Particulars stated in catalogues, images, brochures, cost estimates and offers are subject to confirmation, unless expressly identified as being binding.
[3.2] A valid contract based on ECT A/S’s offer exists only where a written confirmation of the order has been sent by ECT A/S or where the goods have been delivered.
[3.3] The scope of deliveries and/or services shall be determined by the written confirmation of the order by ECT A/S – which in case of individual services or development solutions may refer to a specification of services – or in the event such confirmation does not exist by the order of the Customer.
[3.4] When the Supplies are expected to meet special needs of the Customer, such special purposes and the requirements to fulfill have to be expressly mentioned in the Customer’s order and must be confirmed by ECT A/S in the written confirmation or the specification of services.
4. Time for Delivery or Performance
[4.1] Dates and times set for Supplies are binding only if they have been confirmed by ECT A/S explicitly in writing.
[4.2] Dates and times set for Supplies can only be observed if all Documents and information to be supplied by the Customer, necessary permits and releases, especially plans, are received in time and if agreed terms of payment and other obligations of the Customer are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended and dates shall be postponed appropriately; this shall not apply where ECT A/S is responsible for the delay.
[4.3] Times set or binding dates for Supplies can be postponed up to two weeks in case a delivery of a primary supplier has not been made by this time. ECT A/S is obliged to immediately inform the Customer about such an event in writing.
[4.4] In the event of a change requested by the Customer subsequently the times set for delivery agreed upon shall begin to run anew from the date the agreement about the requested alteration is closed and an agreed date shall be postponed respectively.
[4.5] If the non-observance of the time set or dates is due to force majeure such as break down, riots, official regulations, shortage of components, or any other course beyond the sole control of ECT A/S, such time shall be extended accordingly.
5. Delivery – Transfer of Risk
[5.1] Partial Supplies shall be allowed, unless they are unreasonable to accept for the Customer. General Terms & Conditions
[5.2] If the parties agree upon customary delivery terms, e.g. fob, cif, etc., the transfer of risk, the delivery, the freight, and assurance shall be regulated pursuant to the regulations of the INCOTERMS, unless otherwise expressly agreed upon. Concerning the content and meaning of such clauses the parties have to refer to the INCOTERMS 2010 edition issued by the International Chamber of Commerce.
[5.3] The risk shall pass to the Customer if dispatch, shipping, the start or performance of assembly or installation, the taking over in the own works or the trial run is delayed for reasons for which the Customer is responsible or if the Customer has otherwise failed to accept the Supplies.
[5.4] If ECT A/S loans or rents supplied goods to the Customer or delivers goods on a trial basis, the Customer bears all risk of loss and damage and the Customer must take an insurance policy covering fire, water and other dangers for such goods and shall store the goods appropriate.
6. Receiving – Acceptance
[6.1] The Customer has no rights to refuse receiving Supplies due to minor defects.
[6.2] If ECT A/S demands acceptance of the Supplies after completion provided that assembly or installation took place, the Customer shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been affected if the Supplies are put to use – where applicable after completion of an agreed test phase.
7. Prices – Invoices – Terms of payment
[7.1] Prices shall be ex-works and exclude packaging, installation, freight, customs duties and insurance; value-added tax shall be added at the then applicable rate.
[7.2] If ECT A/S is responsible for assembly or installation the Customer shall pay the agreed remuneration and any incidental costs required, e.g. travel costs, costs for the transport of tools and equipment and personal luggage as allowances, unless otherwise agreed.
[7.3] ECT A/S reserves the right to reasonably adjust prices due to the occurrence of higher or lower costs after the conclusion of the agreement, especially in the event of the conclusion of collective labor agreements or changes in prices for material, up to 4 weeks before the date of delivery. Proofs are provided upon Customer’s request.
[7.4] The Customer may set off only those claims that are undisputed or against which no legal recourse is possible.
[7.5] Payments shall be made without deduction within 8 calendar days after the delivery, free ECT A/S’s banking account.
[7.6] Checks and bills of exchange, if accepted ECT A/S, shall be deemed to constitute payment only after they have been cashed. Expenses and bank charges must be paid by the Customer.
[7.7] In case of delayed payment of these amounts interest at a rate of 8 % above the base rate of the European Central Bank will be charged.
[7.8] If ECT A/S receives information about the Customer’s inability to pay or has reasonable doubts about the ability to pay (e.g. filing for an insolvency procedure, non-encashment of a check) at the option of ECT A/S all amounts payable shall at once become due and payable without requirement of any prior notice and/or ECT A/S may withdraw of all agreements.
8. Retention of title
[8.1] The items delivered (“retained goods”) shall remain the property of ECT A/S until each and every claim ECT A/S has against the Customer on account of the business connection has fulfilled. The Customer may resale the retained goods in the ordinary course of its business. For the duration of the retention of title, the Customer may not pledge the retained goods or use them as security.
[8.2] Any processing or modification of the retained goods is performed for ECT A/S. ECT A/S requires the ownership or joint ownership of the new item in proportion to the value of the retained goods to the processed or mixed items at the time of processing. The Customer will keep safe the new items at his own account for ECT A/S.
[8.3] The Customer has without undue delay to notify ECT A/S in writing in case of the pledging, confiscation or other distrait or intervention by third parties concerning the retained goods. General Terms & Conditions
9. Right to Use Software – Computer Software Ownership
[9.1] The ownership and/or all other rights to the software shall stay with ECT A/S. The Customer is obliged to mark the software in case of alterations or connections, especially to apply a notation of copyright. He is not allowed to disassembly, request or translate software and may not unhinge parts of the software.
[9.2] The Customer receives a non-exclusive, timely unlimited, non-withdrawable and not transferable right to use the software delivered together with devices (hard-ware) by ECT A/S.
[9.3] The Software may only be used in connection with one certain terminal or device; any use outside this scope is excluded, unless a right to a multiple use of the software (e.g. the use in networks) is agreed upon.
[9.4] The software may only be transferred for utilization to a third party in combination with a device delivered by ECT A/S. The Customer shall conclude a written agreement with the third party, requiring the third party to assume the obligations of the agreement with ECT A/S.
[9.5] The software may only be duplicated or altered with written approval by ECT A/S. The Customer is allowed to back up the software without express written agreement.
[9.6] The right to use ceases in the event the Customer looses the ownership or the possession of the hardware.
[9.7] The maintenance of software has to be agreed within a maintenance contract or a service contract separately. This shall include, pursuant to specification of services, all measures which will be regarded by ECT A/S as required for the maintenance of the security of the system, especially technical alterations and improvements (software-updates).
10. Conditions – Defects as to quality – Warranty
[10.1] All parts or services where a defect becomes apparent within the limitation period shall, at the discretion of ECT A/S, be repaired, replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the reason for the defect had already existed at the time when the risk past.
[10.2] Even by providing careful creation of software it is not possible based on state-of-art to exclude all software defects under all conditions of application. The Customer shall have no claim based on defects of software arising from non-producible software errors or in case of modifications or repair work carried out by the Customer or third parties.
[10.3] Claims based on defects are subjects to limitation periods of 12 months commencing in the case of deliveries of goods with their transfer, in the case of contracts of work and services with acceptance, in each case at the time of the passage of risk.
[10.4] The Customer shall notify defects to ECT A/S in writing and without undue delay. In so far as the defect is officially the Customer has to notify ECT A/S at least 8 calendar days after receiving the delivery. The same shall apply as soon a hidden defect becomes known to the Customer.
[10.5] ECT A/S shall first be given the opportunity to supplement its performance within a reasonable period of time. If the supplementary performance is unsuccessful, the Customer shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have.
[10.6] There shall be no claims based on defect in cases of insignificant deviations from the agreed quality and of only minor impairment of usefulness.
[10.7] Furthermore there shall be no warranty for defects or damages arising from: natural wear and tear, defective workmanship, assembly, commissioning or faulty or negligent handling, excessive strain by the Customer or third parties unsuitable equipment or inappropriate foundation soil, non-observance of the regulations and provisions for installation, assembly and commissioning, use or operation given by ECT A/S.
[10.8] For the time of repair or replacement the recommencement of limitation periods will be suspended beginning on the date ECT A/S receives the defect goods.
[10.9] ECT A/S’s expenses arising from unjustified complaints about quality or quantity of Supplies will be charged, e.g. for investigation of the goods. General Terms & Conditions.
11. Industrial Property Rights and Copyright – Defects in Title
[11.1] Unless otherwise agreed, ECT A/S shall provide the Supplies free from third parties’ industrial property rights and copy-rights (hereinafter referred to as “IPR”) with respect to the country of the place of destination. If a third party asserts a justified claim against the Customer based on an infringement of an IPR with respect to the Supplies made by ECT A/S and then used in conformity with the contract, ECT A/S shall be liable to the Customer within the time period for warranty stipulated in No. 10.3.
[11.2] Claims of the Customer shall be excluded, if it is itself responsible for the infringement of an IPR.
[11.3] Claims of the Customer shall also be excluded if the infringement of the IPR is caused by specifications made by the Customer, to a type of use not foreseeable by ECT A/S or to the deliveries being modified by the Customer or being used together with products not provided by ECT A/S.
[11.4] Any other claims of the Customer against ECT A/S or any such claims exceeding the claims provided for in this Article, based on a defect in title, shall be excluded.
12. Venue and applicable law
[12.1] Any dispute arising out of the contract shall be settled at the Court of Denmark. The venue is “SØ-og Handelsretten” in Copenhagen. However, the seller is entitled to demand arbitration according to the general rules of the Court of Denmark. The Court of Arbitration is set up in Copenhagen. Settlement through arbitration does not exclude the possibility of an injunction or that other preliminary remedies can be carried through at the relevant revenue.