- Scope of Applicability
1.1 These Terms and Conditions of Sale (“T&C”) apply to all sales of products by TracInnovations A/S, CVR-no. 36982764 (“us” or “we”) notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other communication from you. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by us unless and until we expressly confirm our acceptance in writing.
1.2 We reserve the right to change these T&C at any time. Such changes will only have effect for orders made after you receive notice of the changed T&C and will not affect orders made and accepted by us prior to your receipt of our notice of the changed T&C.
- Offers, Purchase Orders and Order Confirmations
2.1 All offers made by us are open for acceptance within thirty calendar days from the date of the offer, unless otherwise specifically stated therein, and are subject to the availability of the products offered.
2.2 All purchase orders issued by you shall specify as a minimum the type and quantity of the products requested, applicable unit prices, delivery place and requested delivery dates. No purchase order shall be binding on us unless and until confirmed by us in writing. Our order confirmation is binding for you and cannot be terminated, annulled or adjusted by you without our consent.
- Prices and Terms of Payment
3.1 The prices for the products shall be those set forth in our order confirmation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value added and similar taxes or charges imposed by any government authority.
3.2 Unless expressly stated otherwise in our quote and order confirmation, we will invoice the amount set out in each of our order confirmation when we give notice to you that we have completed the installation of the product at your site in accordance with our offer (the “Installation Date”).
3.3 Unless otherwise set out in our order confirmation, you must effectively pay all amounts no later than fourteen calendar days following the date of each invoice without offset or deduction. Payment shall be considered to have been made on the day the amount due is effectively received by us. All payments must be made by wire transfer to a bank account designated by us. You must pay bank transfer fees to your bank, whereas we will pay bank transfer fees to our bank. In the event of any delayed payment we are entitled to claim interest in the amount of 1% per month of the amount due.
3.4 Title to the products delivered shall remain vested in us and shall not pass to you until the products have been paid for in full. If you fail to pay any invoice within fourteen calendar days of the due date of payment, we may take back the products covered by the invoice.
- Terms of Delivery and Late Delivery
4.1 Unless expressly stated otherwise in our order confirmation, all deliveries of the products shall be FCA – Free Carrier (named place of delivery) in accordance with Incoterms 2010. The risk of loss of or damage to the products shall pass to you in accordance with the agreed delivery term.
4.2 Notwithstanding anything to the contrary in clause 4.1 title to any software incorporated within or forming a part of the products shall at all times remain with us or the licensor(s) thereof, as the case may be.
4.3 You shall bear all freight costs, packing costs (in excess of the standard packing applied by us), taxes and duties etc., and to the extent such are initially paid by us, we will invoice any such costs and you will reimburse and thus pay such costs to us. We will pay insurance costs with respect to the products until the risk has passed to you.
4.4 The delivery dates of the products shall be those set forth in our order confirmation.
4.5 We reserve the right to make delivery in instalments.
- Acceptance of products
5.1 You must inspect the products delivered upon receipt. You are deemed to have accepted the products delivered “as is” unless written notice of rejection specifying the reasons for rejection is received by us within five calendar days after the Installation Date.
6.1 Unless otherwise separately agreed in writing, we warrant for a period of 12 months following the Installation Date that our products will be free from material defects and thus will perform substantially in accordance with the applicable specifications for our products under normal use. The warranty does not cover damage resulting from normal wear and tear, use contrary to specifications and guidelines accompanying our products, negligent handling, lack of reasonable or improper maintenance and care, use of the products in combination with equipment or software not supplied by us, accident, abuse by anyone other than us and other matters beyond our reasonable control of.
6.2 With respect to products which do not conform to the warranty our liability is limited, at our election, to (i) refund of the purchase price for such products less a reasonable amount for usage, (ii) repair of such products, or (iii) replacement of such products; provided, however, that you give written notice to us describing the lack of conformity within fourteen calendar days after you discovered the lack of conformity or ought to have discovered it and at our request return such products to us.
6.3 We make no other warranty, express or implied, with respect to the products delivered hereunder, and the remedies set out in this clause 6 shall constitute your sole and exclusive remedies in respect of any lack of conformity of the products delivered hereunder (except title), including in the event of any breach of the warranties we have provided to you. In particular, we make no warranty with respect to the merchantability of the products delivered or their suitability or fitness for any particular purpose.
6.4 The warranties are subject to the exclusions and limitations of liability set out in clause 9 of these T&C.
- Intellectual Property Rights
7.1 We retain full ownership in and to all of our intellectual property rights created, acquired or otherwise obtained including with respect to the products and nothing set out in these T&C shall be deemed whether directly or indirectly to assign, transfer or grant any rights to any of our intellectual property rights to you, a customer of yours or any other third party.
7.2 If any of the products delivered hereunder are held to infringe a third party’s patent, utility model, design, trademark or other intellectual property right and you are enjoined from using same, we will, at our option and expense, (i) procure for you the right to continue using the products; (b) replace the products with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the products to make them non-infringing; or (d) refund the purchase price of the products less a resonable amount for usage. The foregoing states our sole liability for intellectual property rights infringement.
8.1 With respect to any software products incorporated in or forming a part of our hardware products provided hereunder, included the TracSuite software and any updates thereto (“Software”), such Software is being licensed and not sold to you. Notwithstanding anything to the contrary contained herein, we or our licensor, as the case may be, retain all rights and interest in Software.
8.2 We hereby grants to you a royalty-free, non-exclusive, non-transferable license, without the right to sublicense, to use Software solely for your own internal business purposes on the hardware products provided by us hereunder or on one of your devices which meet the minimum requirements as determined by us (for example on a PC, laptop, mobile or tablet under your control) in accordance with these T&C and to use the related documentation solely for your own internal business purposes. This license terminates when your lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. You agree to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the Software and related documentation provided hereunder. You may not:
- Edit, alter, modify, adapt, translate. enhance or otherwise change or supplement the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things.
- Reproduce, copy, distribute, resell or otherwise use the Software for any commercial purpose.
- Allow any third party to use the Software on behalf of or for the benefit of any third party.
- Use the Software in any way which breaches any applicable local, national or international law.
- Use the Software for any purpose that we consider is a breach of these T&C.
8.3 We are entitled to terminate this license if you fail to comply with these T&C. You agree, upon termination of this license, immediately to return to us all Software and related documentation provided hereunder and all copies and portions thereof.
8.4 You are responsible for ensuring your devices meet the minimum requirements of the TracSuite software.
- Limitation of Liability
9.1 The parties shall be liable to pay damages in accordance with the ordinary rules of Danish law subject to the limitations and exclusions set out in these T&C.
9.2 Neither of us will be entitled to, and neither of us shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, loss of data, injury to reputation or loss of customers which shall apply regardless of whether such indirect losses etc. are suffered by any of us or any third party.
9.3 Our total aggregated liability for any and all claims made by you pursuant these T&C shall for each of our order confirmations be limited to an amount equal to the total aggregate amount effectively paid by you to us for the products comprised by the applicable order confirmation to which a claim is directly related.
9.4 We shall assume product liability in accordance with the ordinary rules of Danish legislation, however to the maximum extent permitted under Danish legislation the exclusions and limitations set out in these T&C including this clause 9 shall apply.
9.5 We shall not be liable for any claims based on our compliance with your designs, specifications or instructions or repair, modification or alteration of any products by parties other than us or use in combination with other products.
9.6 The above stated exclusions and limitations shall apply irrespective of the basis of the claim and shall include claims based on acts of negligence, strict liability, breach of warranties, penalties, liquidated damages, indemnification claims and/or punitive damages save as otherwise explicitly prohibited pursuant to applicable mandatory Danish legislation.
- Force Majeure
10.1 A party shall not be liable for delays or for non-performance (other than failure to pay any amounts due) resulting from a force majeure situation. For as long as a force majeure situation persists the party affected by such force majeure situation shall be exempt from performance of its obligations.
11.1 Save as otherwise explicitly agreed in writing between the parties, no other terms and conditions than those set out in these T&C shall apply, including without limitation any of your terms and conditions or other documents or information provided by you to us.
11.2 The United Nations Convention for the International Sale of Products shall not apply to these T&C or to any contracts of sale entered into between us.
11.3 No waiver of any provision of these T&C shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these T&C shall not constitute a waiver of such provision or any other provision(s) of these T&C.
11.4 Should any provision of these T&C be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these T&C shall remain in full force and effect and shall be construed in accordance with the modified provision.
11.5 These T&C and all contracts of sale entered into between us shall be governed by and construed in accordance with the laws of Denmark without giving effect to any choice of law or conflict of law provisions. Any dispute shall be instituted exclusively before the competent courts of Denmark.