1.1 The general terms of sale and delivery below apply to deliveries and services supplied by IHM P/S, herein-after IHM. The conditions take precedence over all other terms and conditions, provided that they are not dispensed with by written agreement between the Parties.
2. CONSULTANCY AND OFFERS
2.1 IHM solely advises the Buyer within its own field of experience and to the best of its knowledge at the time of the consultancy. However, IHM accepts no liability for the fact that experience gained at a later stage may give rise to other potential solutions.
2.2 Consultancy is provided solely based on the information given to IHM by the Buyer.
2.3 Offers submitted by IHM are valid for 60 days from the date of the offer. If an order is placed after expiry of the deadline of the offer, IHM reserves the right to cancel or amend the offer.
3.1 No agreement exists between the Parties before IHM has given approval in the form of an order confirmation.
3.2 If IHM’s order confirmation does not tally with the Buyer’s order, the Buyer must immediately notify IHM. Otherwise, the Buyer will be bound by the content of the order confirmation.
3.3 No-one, including dealers, is authorised to make additions or amendments to IHM’s orders.
4. TERMS OF DELIVERY AND PRICES
4.1 Delivery is ex works, unless otherwise agreed in writing. INCOTERMS 2010 EXW apply.
4.2 All prices are given in DKK or EUR, without VAT and other currently applicable taxes or duties.
4.3 The Buyer is responsible for all necessary import licences.
4.4 Costs associated with installation and commissioning are not included in the quoted prices, unless expressly stated in offers/orders or in a written agreement.
4.5 Costs associated with acquisition of certificates, type approval, certification of documents, etc. are paid by the Buyer.
4.6 Items may not be returned without the prior consent of IHM. The item must be returned in the undamaged original packaging.
5. TERMS OF PAYMENT
5.1 The due date for payment of deliveries and services is 30 days from the invoice date.
5.2 IHM reserves the right before delivery to demand either a guarantee for payment or prepayment in whole or in part. If a delivery to a Buyer cannot be insured by IHM’s credit insurance company, payment for the delivery must be insured by pre-
payment, letter of credit or similar instrument. Costs associated herewith are paid by the Buyer.
5.3 If payment is made later than the agreed due date, default interest will be added equivalent to the National Bank of Denmark’s lending rate plus 7%. Default interest is calculated from the due date until payment has been made.
5.4 If the Buyer has not paid an amount due by the due date, IHM is entitled upon written notification to the Buyer to cancel the agreement or withhold the delivery either in whole or in part. In this context, IHM is entitled to change the terms of payment for future deliveries without notice.
5.5 Retention of title. IHM reserves the right of ownership of the delivery until payment has been made. If the Buyer does not meet the terms of payment, IHM is entitled to demand return of the delivery.
5.6 All costs associated with delivery of deliveries, including freight charges, insurance, etc. must be paid by the Buyer. If IHM makes an outlay for such costs, these will be charged to the invoice.
6. DELIVERY TIME – DELAYS
6.1 The delivery time quoted in the offer is an estimate and is given to the best of IHM’s judgement.
6.2 The delivery time (the period between the date of the offer and the delivery time stated in the offer) is calculated from receipt of the order and all information/specifications necessary for the delivery in question that the Buyer is required to supply.
6.3 The delivery point must be stipulated in the order confirmation. On receipt of the order confirmation, the Buyer must immediately notify IHM if the delivery point is incorrect.
6.4 Delivery up to 60 days after the delivery time agreed upon between the Parties is considered on time.
6.5 If delivery does not take place within the specified period, and provided that the delay is not due to the Buyer’s circumstances and/or force majeure, the Buyer is entitled upon written notification to IHM to cancel the agreement pertaining to the part of the delivery that has not been delivered.
6.6 The Buyer may not – regardless of the cause of the delay – demand compensation from IHM and is, as specified, solely entitled to cancel the agreement in whole or in part.
6.7 If the Buyer fails to receive or collect a delivery ready for dispatch, or parts thereof, on the agreed day, the Buyer is nevertheless obliged to pay as if the delivery had been made.
7. GUARANTEE AND DEFECTS
7.1 IHM gives a 24-month guarantee against manufacturing and material defects not due to normal wear and tear on all products manufactured by IHM, calculated from the date on which the system is put into operation although no longer than 30 months from delivery. The guarantee is only valid if the equipment is used and treated in accordance with instructions.
7.2 In the case of third party products included in the delivery, such as terminals, computer equipment, servers, base stations and/or products, the guarantee provided is the same as the guarantee that IHM receives from the sub-supplier.
7.3 The guarantee does not cover faults or defects in materials, installations or equipment caused by the Buyer, or in constructions ordered or specified by the Buyer.
7.4 The Buyer itself is responsible for inspecting the delivery on receipt in order to ensure that it is intact and complies with the order.
7.5 In the case of deliveries of finished articles, the Buyer may only claim compensation for defects if a complaint is submitted no later than eight (8) days after receipt of the item.
7.6 If the Buyer itself makes repairs, or if the fault is due to inadequate maintenance or incorrect installation by the Buyer, the guarantee will become void.
7.7 If the delivery has faults or defects covered by the guarantee, IHM is obliged and entitled to rectify faults or defects as soon as possible after receipt of the Buyer’s notification thereof. IHM decides whether corrective action must be taken at the Buyer’s premises, i.e. at the point of installation, or at IHM. The guarantee solely covers the cost of materials and labour associated with corrective action taken within normal working hours and, thus, does not cover the cost of transport, travel expenses and/or shipping costs. If corrective action is taken outside normal working hours at the Buyer’s request, the Buyer pays labour costs. The Buyer may not invoke other rights arising from breach of contract before IHM has made reasonable efforts to rectify the defects.
7.8 If corrective action is not taken within a reasonable time frame, the Buyer may set a final deadline for corrective action – a minimum of 14 days. If corrective action is not taken within this fixed time frame, the Buyer may not cancel but may demand a proportionate discount and no other compensation. A proportionate discount may not exceed 15% of the contract sum.
7.9 With regard to delivered software, the Parties have agreed that IHM is not liable for faults and defects for which the Buyer has not, within six (6) months of delivery, notified IHM that it will claim. IHM is obliged and entitled to rectify defects claimed by the Buyer within six (6) months of the delivery date.
7.10 IHM bears no liability for software supplied by a third party but transfers promised rights to the Buyer.
7.11 If the supplied software is used in or integrated into other software not pre-approved by IHM, IHM is relieved of any liability.
7.12 IHM is liable for ensuring that third parties’ intellectual property rights are not breached when the Buyer uses the delivery for the agreed or intended purposes.
7.13 Under no circumstances is IHM liable for operating losses, loss of profit or the customer’s potential liability to a third party or, for example, arising from data errors, unintentional deletion of data due to program errors and/or consequences thereof.
7.14 IHM is obliged to supply parts or equipment that fully replace previously supplied IHM equipment and which have the same or better usability. This liability applies for seven (7) years from the date of delivery.
8. PRODUCT LIABILITY
8.1 To the extent that IHM incurs liability towards a third party, the Buyer must indemnify IHM for such damage or such losses for which IHM – pursuant to these terms of sale and delivery – is not liable to the Buyer.
8.2 IHM is not liable for damage caused by the delivery once it is in the possession of the Buyer: a) on real property or personal property, b) on products in which the delivery is included.
8.3 Under no circumstances is IHM liable for operating losses, loss of profit or other consequential financial losses.
8.4 The stated limitations of IHM’s liability do not apply if IHM has committed gross negligence in respect of the delivery’s harmful characteristics.
8.5 If a third party brings a claim against one of the Parties for damages pursuant to this paragraph, said Party must immediately notify the other Party thereof. IHM and the Buyer are mutually obliged to submit to legal proceedings at the court of law, or court of arbitration, trying claims for damages filed against one of them on the basis of damage or loss allegedly caused by the delivery. However, mutual relations between the Buyer and IHM must be settled according to paragraph 12
concerning Disputes and Applicable Law.
9. FORCE MAJEURE AND EXEMPTION FROM LIABILITY
9.1 IHM is entitled to cancel the agreement upon written notification to the Buyer if fulfilment of the agreement is not possible for IHM within a reasonable time frame due to war and terror, IT attacks, strikes, lockouts, political circumstances or other force majeure events over which IHM has no control. The same applies to delay or defects in deliveries from sub-suppliers. In such situations, IHM accepts no liability to the Buyer for damages.
10. DRAWINGS AND DESCRIPTIONS
10.1 All drawings, technical documents and descriptions and software relating to the delivery and its execution, which are delegated to one of the Parties by the other Party, belong to the Party that has submitted them.
10.2 Such materials are confidential and may not without the consent of the Party that submitted said materials be used for any purpose other than execution, commissioning, operation and maintenance of the delivery.
11. SPECIAL CONDITIONS APPLYING TO SOFTWARE DELIVERIES
11.1 ‘Software’ covers all delivered program products, including backups, documentation and program media.
11.2 Software and all associated rights, including copyrights and industrial rights, etc. are and remain IHM’s property with the exception of deliveries from third parties, in which case said third party’s conditions apply.
11.3 The end customer is not authorised to sell, give as security, delegate, lend or rent software – either in whole or in part – to others, neither free of charge nor for a fee.
11.4 However, as agreed with IHM, the Buyer may transfer its rights and obligations, provided that the Buyer itself ceases to use the software and associated hardware in any way or form.
11.5 The Buyer is not authorised to remove trademarks, product designations or similar marks.
11.6 In principle, IHM is not responsible for ensuring that the software delivery is protected against external IT attacks.
11.7 For further details please refer to IHM’s Licence Terms.
12. DISPUTES AND APPLICABLE LAW
12.1 It must be attempted to resolve any dispute that may arise in connection with agreements between the Buyer and IHM, including interpretation of these terms
and conditions, by mediation at the Danish Institute of Arbitration according to the rules of the Institute of Arbitration applicable when the request for mediation is filed.
12.2 If the mediation is concluded without resolution of the dispute, the dispute must be settled by arbitration at the Danish Institute of Arbitration.
12.3 The agreement between the Buyer and IHM, and any disputes that may arise from or in connection with the agreement, are subject to Danish law.