General sales terms and conditions of
Products, Service Agreements and/or Consultancy Services to FlexCo-Groups’ Customers
Effective from 2020 October
For all e-mails
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GOVERNING LAW AND MISCELLANEOUS
FlexcoGroup respects the author’s property rights of others.
These general terms of sale and delivery (“Terms”) apply to any sale by Flexco-Group Aps CVR. number 41789808 (“Seller”) of products, including software, consultancy services, service agreements and/or contingency agreements;
2. Contractual basis
2.1 The terms, together with the Seller’s offer, order confirmations and any written agreement, the relationship governing between The Seller and buyer, constitute the total contractual basis for the Seller’s sale and delivery of Products to Buyer (“The Agreement”).
2.2 Any terms of purchase by buyer printed on orders or otherwise communicated to the Seller do not form part of the Agreement unless the Seller’s express consent to this effect is available.
2.3 Exceptions to the Terms shall be stated in writing and expressly by the Seller in the offer, order confirmation or by the Agreement.
2.4 In the absence of an agreement regulating the relationship between The Seller and the Buyer, the supply of Products is governed solely by these Terms.
2.5 Amendments to and supplements to the Agreement shall apply only if the parties agree to them in writing.
3. Orders, offers, acceptance and order confirmations
3.1 Offer. Offers are binding on the Seller only if it is accepted in writing by buyer within 7 working days of the date of the Seller’s offer, and/or otherwise stated in writing in the offer from the Seller. If buyer does not accept the offer in writing within the above-mentioned deadline, the Seller is entitled to sell the offered Product or Service to any other page.
3.2 Order confirmations. The seller aims to send confirmation or rejection of an order for products to buyer in writing within 7 working days of receipt of the order. Confirmations and refusals of orders must be written to bind the Seller.
3.3 Change of orders – Buyer. Buyer cannot modify an order placed, including making changes to specification, quantity and delivery time, without the Seller’s written consent.
3.4 Cost. If the Seller consents to any changes made by the Buyer, Buyer shall cover the costs associated with it for the Seller.
3.5 Change of orders – Seller. If the order confirmation sent by seller should differ from buyer’s orders (e.g. by surcharge, limitation or reservation), Buyer is obliged to notify the Seller in writing within 7 working days of receipt of the order confirmation if the Buyer cannot accept the deviations from buyer’s orders. Otherwise, the seller’s
confirmation and these Terms apply.
3.6 Return right. The Seller does not grant a return right to buyer unless this is
in writing and expressly agreed in advance between the parties. In addition, the Seller reserves the right to deduct a return fee of 15% of the invoice value when crediting.
4. Software, etc.
4.1 The software. The software consists of operating systems, middleware or customization programs, applications, or other software that is published or licensed by the Seller or third party (“Software”).
4.2 The software. Buyer receives a non-exclusive right of use to the Software contained in the Product under the terms specified in the license agreement included with the Product.
4.3 The software. Seller retains proprietary and other rights, including copyright and trademark rights, as well as other intellectual property rights to the Licensed Software, as well as other versions, modules, upgrades, documentation, fixes, bug fixes, updates, derivative works or other modifications to the Software. Thus, the Buyer does not acquire ownership of the supplied copies of the Software.
4.4 The software. The software may not be copied or modified except for necessary backup, and the Software may only be used on the supplied equipment. Buyer can only use backups if the original, supplied version has been permanently lost.
4.5 The software. Buyer’s right of use to the Software is subject to the license terms applicable to the Software at any time. Should there be a discrepancy between these terms and the license terms, the license terms will prevail.
4.6 The software. The transfer to third parties of the non-exclusive right of use of software and documentation may be made solely as part of a joint transfer of equipment, software and documentation and only in accordance with the software applicable to the Software in question.
License terms. The transfer of software or documentation to third parties may not take place without the Seller’s written permission to do so.
4.7 The software. If the respective suppliers provide a guarantee for the Software, this warranty will be continued against buyer to the same extent that the Seller may bring a claim against the suppliers. In addition, The Seller cannot be held responsible for any errors or defects in the Delivered Software.
4.8 The software. If the parties have agreed that the Seller or Seller’s suppliers will carry out ongoing maintenance of the delivered Software, the terms of this agreement are set out in a separate agreement.
4.9 The software. Documentation is only included to the extent that it is included without a separate payment from the respective supplier.
4.10 Hardware and Software. If an agreement has been reached between the parties on installation and/or commissioning, the Seller will install the delivered within the Seller’s normal working hours, unless otherwise agreed in writing and expressly between the parties. Buyer is required to ensure that a full and secure backup is established before installation starts.
4.11 Hardware and Software. The buyer is also responsible for giving the Seller free, secure and unfettered access to buyer’s system so that the installation work can be carried out unhindered by the Seller. At the same time, Buyer is required to comply with all health and safety requirements and similar regulatory requirements, and the Buyer, as necessary, provides qualified personnel, machine time and telephone to the Seller in connection with the performance of the work.
5. Consultancy services
5.1 Consultancy services. Consultancy services consist of consultants with specified competences, who are made available to buyer by agreement (“Consultancy Agreement”).
5.2 If the Consultant Agreement is concluded with buyer, the Seller shall ensure that the consultants made available to the Buyer meet the qualification requirements set out in the Consultancy Agreement, as well as
The consultants will also meet other relevant general qualification requirements.
5.3 Seller will make the consultants specified in the Consultancy Agreement with the buyer within normal working hours Monday to Thursday from 08:30 to 16:30 and Friday from 08:30 to 16:00 (“Working time”) during the period specified in the Consultancy Agreement.
5.4 It is the Buyer’s job to instruct the consultants concerned and to exercise project management with the consultants and to carry out quality assurance in accordance with the specified tasks to the extent that buyer should think this is relevant. By extension, the seller is not responsible for the
work done by the consultants for buyer.
5.5 In the relationship between Seller and Buyer, all rights to the subject-matter arising from the efforts of the consultants will, as far as possible, belong to the Buyer, although the Seller is entitled to take advantage of the general experience/knowledge arising from the
the activities of the consultants.
5.6 Buyer warrants that neither the Seller nor the consultants will incur any liability to third parties or public authorities as a result of buyer’s instructions. In addition, Buyer warrants that the consultants are not instructed in violation of law and honor, and Buyer guarantees to exempt the Seller from any claim raised against the Seller and/or one or more consultants based on the consultants’ work at Buyer.
5.7 Since the consultants are employed by the Seller, the Seller may at any time request that instructions be given to the Seller and not to the individual consultants. Regardless of whether instructions are given directly or through the Seller, the above warranties, etc. are still valid from
6.1 Service. A service is an ongoing service regulated in an agreement (“Service Agreement”) that Buyer acquires or agrees to acquire from the Seller.
6.2 If expressly specified in the Service Agreement, The Seller maintains the equipment of the Buyer at the addresses specified in the Service Agreement. If buyer makes changes and/or extensions to the equipment covered by the Service Agreement or its location, the changes must be notified immediately to the Seller.
6.3 The Seller does not provide a uptime guarantee.
7. Buyer’s obligations
7.1 Buyer shall provide the Seller with correct and complete information necessary for the Seller’s performance of its obligations, including about buyer’s specific needs, industry conditions and the intended use of Products and Service Agreements.
7.2 The Seller claims that the supplies comply with general law, but buyer is responsible for compliance with applicable laws and regulations, including that the intended use of the Seller’s supply is lawful and meets buyer’s requirements for the delivery, and buyer
to inform the Seller thereof as necessary and appropriate.
7.3 Buyer must obtain all authorisations and approvals from third parties (including authorities) necessary for the Seller to fulfil his obligations and for buyer’s use of the supplies to be lawful.
8.1 Seller is entitled to use subcontractors, including having its obligations performed in whole or in part by subcontractors.
9. Price and payment
9.1 All prices are exclusive of VAT and other taxes, unless expressly stated otherwise. Prices do not include freight or handling fees, unless expressly stated in the Agreement.
9.2 Price change. All prices listed, including in quotations and order confirmations, are subject to price changes, so that the Seller is entitled to change prices until the day of delivery as a result of changes in e.g. purchase prices, customs duties, freight, insurance rates or other matters that are beyond the Seller’s influence. Such adjustment of the remuneration shall enter into force from the time when the change of prices enters into force against the Seller. If a specified price is based on deliveries in currency other than Danish kroner, the Seller is entitled to re-regulate the price against the Buyer if the exchange rate at the time of invoicing has changed by more
than 2% in relation to the daily price at the time of quotation or order.
9.3 Payment. Payment is due at the time of delivery. Payment must be made within a net 14 days in cash after delivery, unless otherwise agreed in writing. Payment must be made as an efficient payment and thus no payment can be withheld or set off.
9.4 Services. Invoicing of maintenance is done according to time and material consumption based on the Seller’s applicable hourly prices, unless special agreement is reached on the Seller’s remuneration for the maintenance of extensions and/or modifications.
9.5 Billing occurs months in advance. Travel and accommodation for work carried out on non-bridging islands and outside Denmark is invoiced separately on account. If buyer postpones or cancels the delivery of consultancy services altogether due to circumstances for which buyer is responsible, the Seller is entitled to invoice all allocated time under the following conditions:
Time of cancellation
Cancellation less than 72 hours before agreed booking (See note below *): 40%
Cancellation less than 48 hours before agreed booking (See note below *): 60%
Cancellation less than 24 hours before agreed booking (See note below *): 80%
* Note: Weekend and public holiday hours do not count unless work is involved on these days
9.6 Regulation. All prices for service and consultancy services are added 3% each year on 1 January. The adjustment shall have an effect on service and consultancy services provided after 1 January of that year.
9.7 Allowance. If the Seller’s costs increase as a result of buyer’s circumstances, Buyer is obliged to pay reimbursement to the Seller.
10. Late payment
10.1 Interest rate. If buyer does not pay in a timely manner for reasons for which the Seller is not liable, the Seller is entitled to 1,5 % interest per month from the due date until payment is made. The buyer is also obliged to pay the reminder fee on each issued reminder of DKK 100 (up to a total of
300) and reimburse any costs related to collection and other expenses related to the recovery of the purchase price. At the same time, the seller is entitled to claim a fixed compensation amount of DKK 310 excluding VAT to cover the
10.2 If the consideration (including fees and interest) is not paid in a timely manner, the Seller may terminate the Agreement if the Buyer has not corrected the relationship within 8 days of the written claim.
10.3 Repeal. If buyer has not yet paid the overdue amount after 14 days, the Seller shall, upon written notice to the Buyer, be entitled to:
(i) cancel the sale of the Products to which the late payment relates and demand the return of the Products from the Buyer, if delivery has taken place;
(ii) cancel the sale of Products not yet delivered to the Buyer or require prepayment thereof,
(iii) terminate the agreement concluded between the Parties;
(iv) in addition to interest, to claim compensation from buyer for the loss suffered by the Seller and/or
(v) assert other remedies.
11. Reservation of property
11.1 Ownership. The ownership of the Product shall remain with the Seller or the Seller to whom the Seller has transferred his rights until the entire purchase price with interest, costs, etc. is fully paid up by the Buyer and other obligations under the Agreement and claims arising from any
installations, repairs, corrections or other measures;
product, including the cost of any readmission has been paid to the Seller.
11.2 Readmission. Seller is entitled to take back the Product if buyer does not meet his obligations.
11.3 Buyer is therefore unjustified to disclose (including sell), pledge, rent, lend, deposit or otherwise dispose of the Product before full payment has been made, see paragraph 9.
11.4 Buyer is obliged to keep the Product insured against accidental demise until buyer takes ownership of the Product.
12.1 Delivery time. The delivery time is approximately stated and is non-binding, unless expressly stated otherwise. In addition, the Seller is entitled to defer the approximate delivery time if exceeding it is necessited by circumstances not due to the Seller.
12.2 Delivery condition. All Products and Services are provided to the address agreed with Buyer.
12.3 If no delivery clause is agreed, delivery must be made to buyer’s registered office.
12.4 Buyer must bear a shipping and handling fee.
12.5 Delivery of Product. Delivery shall be deemed to have taken place when the Product has been handed over to – or made available to – the Buyer or his representative. Once delivery has been made, the risk passes to buyer.
12.6 Delivery of Hardware and Software. Delivery is considered to have occurred at the time when the Software is surrendered to the Buyer or his representative, or when the Software is made available to the Buyer, for example. information about links to download or equivalent. Once delivery has been made, the risk passes to buyer.
13. Delayed delivery
13.1 Delay. If the delay in the delivery of the Product is due to any circumstance which, in accordance with paragraph 18, constitutes a ground of liability or is due to buyer’s action or omission, the delivery time shall be extended to the extent deemed reasonable in the circumstances. Sell
are also entitled to payment for any additional expenses at the Seller’s hourly rates at any time.
13.2 Communication. If the Seller expects a delay in the delivery of products, buyer will be informed accordingly. At the same time, the seller will disclose the reason for the delay and new expected delivery time.
13.3 Claim. If the Seller does not deliver the Product in a timely manner, you can. The buyer, by written notification to the Seller, sets a reasonable time limit for delivery (minimum 60 working days).
13.4 Repeal. If delivery does not take place within the (reasonable) time limit set by the Buyer, the Buyer is entitled, with 25 days’ written notice to the Seller, to terminate the Agreement in whole or in part in the event of a delay that is significant to the Buyer and would also be considered to be material to a buyer in general.
13.5 Custom-made products. In the case of custom-made products,
regardless of the above, the Buyer cannot withdraw the deal on the basis of
unless this can be done without loss to the Seller.
13.6 Compensation. If buyer terminates the Agreement in accordance with paragraph 4, Buyer shall be entitled to compensation from the Seller for the additional costs incurred by him in acquiring similar equipment from other parties. However, the compensation may not exceed 50 % of the invoice value (maximum
$1,000,000) of the delayed delivery.
13.7 Buyer has not beyond it in paragraph 1. 6 that right to any compensation for operating loss, loss of profit, increased resource consumption, loss of reputation, consequential damages, penalties, loss or deferred sale, loss of data or costs for the re-establishment of data, freight costs and other consequential losses or indirect losses. The cost of labour costs and expenses related to the purchase of similar services and Products shall also not be covered to an additional extent than described in paragraph 13.6. This applies regardless of whether buyer withdraws or maintains the purchase.
13.8 Claims for damages. Claims for damages must be made in writing to the Seller within 12 months of the date of the tort, otherwise the claim shall be deemed to have lapsed.
14. Operation and maintenance of the products
14.1 Seller or Seller’s suppliers do not carry out ongoing maintenance of delivered Products unless the parties have expressly agreed to do so.
14.2 The Seller refers to his instructions, manuals, operating instructions, etc., which must always be followed. Moreover, the use of the Product is dependent on the specific circumstances, such as the
materials and tools on which buyer uses the Product. Any instructions for operation and maintenance of the Product, including instructions for use, manuals, operating instructions, etc., must therefore be taken subject to the specific circumstances. The seller will also be
provide guidance on the product’s proper use and maintenance. If buyer is unsure about the correct operation or maintenance of the Product, Buyer should contact the Seller.
14.3 Except in cases of intentional injurious conduct, the Seller shall in no event be liable for any direct or indirect economic or non-economic damage caused by the Product or its use, including, but not limited to, loss due to interruption, computer failure or error, loss of data and other occupational loss, even if the Seller has been made aware of the possibility of such damages. However, the seller shall be liable under the product liability legislation insofar as it applies in the specific situation, in accordance with paragraph 3.
15.1 The Seller is not responsible for and does not guarantee the services, software, products, materials, tools and methods of the Buyer or third party, even if this is included in the supplies, except for any warranties that the Seller may pass on to buyer from Seller’s
manufacturer or supplier on the condition that the manufacturer or supplier agrees that the complaint is covered by the warranty and the manufacturer or supplier releases the Seller from any claim in connection with it.
15.2 In addition, the Seller does not warrant that the products supplied will operate flawlessly or without any interruption.
16.1 Missing. If any of the Seller’s Products are defective, Seller undertakes to repair or resupply such defective Products if buyer advertises to the Seller within 1 year of delivery.
16.2 Services. A service is deficient if the Seller’s services are not performed in accordance with good practice in the IT industry.
16.3 Exceptions. Section 1 does not cover wear parts, defects or defects due to: (i) general wear and tear, (ii) storage, installation, use or maintenance in violation of the Seller’s instructions, recommendations, specifications or general practice.
(iii) repair or modification by anyone other than the Seller, and (iv) other
for which the Seller is not responsible.
16.4 Obligation to investigate – Buyer. Buyer is obliged to examine the Product immediately after delivery to determine whether the Product suffers from obvious defects or defects. The Seller is entitled to reject any complaint of defects that should have been established by such
16.5 Communication. Complaints concerning defective deliveries must be made in writing without undue delay and no later than 5 working days after delivery or after the discovery of the hidden defect. If buyer fails to do so, he shall forfeit the right to a supply of damages, in accordance with paragraph 1, and to make other deficiency powers
16.6 The form of the complaint. Buyer’s complaint must include comprehensive
(a) Extent of the deficiency
(b) Nature of the deficiency
(c) Evidence of the defect
d) Proposal for the solution/formulation of requirements
(e) Delivery date and invoice number
16.7 Remediation. Remediation is done after the Seller’s free choice as either (i) repair, delivery or delivery, or (ii) the instructions of a
reasonable way to circumvent the lack of.
16.8 If a unit affected by defects is replaced with a replacement unit (as part of a Service Agreement or similar), the defective unit belongs to the manufacturer or seller. If the Buyer is responsible for returning the defective unit to the Seller or the manufacturer, this must be done so that the defective unit has come to the Seller or the manufacturer within 20 days of receipt of the replacement unit. Has the defective device not been received within this
buyer will be invoiced for the replacement unit in accordance with the list price for this.
16.9 Claim. In the case of significant deficiencies and the seller has not yet rectified the deficiencies, the Buyer may, by written notification to the Seller, set a reasonable time limit for remediation (minimum 60
16.10 Repeal. In the case of significant deficiencies and if the deficiencies are not substantially remedied within the time limit set by the Buyer in accordance with paragraph 9, buyer may terminate the Agreement in respect of the defective part of the supply by 25 days’ written notice
16.11 Compensation. If buyer terminates the contract, he has the right to demand
compensation of the Seller for the additional costs incurred by him by
acquisition of similar equipment from other parties. Buyer can only make the Seller liable for reasonable and direct, documented losses that buyer could not have avoided.
16.12 Limitation of liability. Notwithstanding the foregoing, Seller’s liability for defects is always limited to 50% (maximum DKK 1,000,000) of the invoice value of the defective Product(s).
16.13 In the event of buyer’s justified cancellation due to the Seller’s default, Buyer is released from all future benefits under the Agreement. In addition, neither party has any additional claims against each other as a result of the termination.
16.14 The Seller has no liability for defects or for failure to deliver beyond those provided for in paragraphs 1, 16.11 and 16.12. This applies to any loss caused by the defect, including operating loss, loss of profit, increased resource consumption, loss of reputation, consequential damages, penalties,
lost or deferred sales, loss of data or costs for data recovery, freight costs and other consequential losses or indirect losses. Buyer’s expenses on labour as well as expenses incurred in
replacement of the defective Product is also not covered. This applies regardless of whether buyer withdraws or maintains the purchase.
16.15 Claims for damages. Claims for damages must be made in writing to the Seller within 12 months of the date of the tort, otherwise the claim shall be deemed to have lapsed.
16.16 If it is found that buyer’s complaint is not justified, the Seller is entitled to recover the costs incurred by buyer’s complaint against the Seller.
17. Common rules on any deficiencies and/or delays
17.1 This paragraph fully describes the Seller’s liability in the event of defects and delay, as buyer expressly disclaims all other powers and rights.
17.2 In the event of the Buyer’s termination in accordance with paragraph 4 or point 16.10, each party shall return what they have received from the other Party. In addition, neither party has any further claims against each other other other than what is already set out in paragraphs 13 and 16.
17.3 Buyer may only make the Seller liable for reasonable and direct, documented losses that buyer could not have avoided. Regardless of what is otherwise stated, the Seller’s total liability in relation to the total delivery cannot exceed DKK 1,000,000.
17.4 The Seller is under no circumstances responsible for buyer’s use of the services provided by the Seller. Buyer is obligated to exempt the Seller from any claims raised by third parties against the Seller, originating from or linked to the Seller’s services or supplies to buyer, and which are outside the limits of the above mentioned amount and type.
18.1 Liability. Each party is responsible for its own actions and omissions under Danish law with the restrictions resulting from the Agreement.
18.2 Seller or Seller’s suppliers shall not be liable for any damage or loss in connection with delivered Products except to the extent that expressly stated in these Terms.
18.3 Product liability. If the products supplied suffer from a defect and thereby cause damage to person, movable property or immovable property, the Seller shall be solely responsible for the damage or loss of the Buyer or third party to the extent that such liability is arising from mandatory legal rules.
18.4 The Seller is not liable for indirect damages, consequential damages, operating losses, loss of earnings and other consequential losses resulting from damages arising from the Product or resulting from the use of the Product.
18.5 Indemnity. To the extent that mandatory legal rules do not preclude this, buyer shall indemnate the Seller to the extent that the Seller is liable to third parties for damage or loss caused by the delivered to the person, movable or permanent
property to the same extent that Seller’s liability is limited to buyer.
18.6 Freedom of responsibility. The following circumstances shall give rise to a freedom of liability if they prevent the performance of the agreement or make the performance unduly burdensome: a conflict of labour and any other circumstance beyond the control of the parties as a result of, but not limited to,
for example, fire, war, mobilization or military calls of similar magnitude, request, seizure, currency restrictions, inability to transport, import/export restrictions, riots and disturbances, failures in power supply or telecommunications, legislative changes or administrative acts, natural disasters, sabotage, terrorism or vandalism (including computer viruses and hacking), shortages of goods, shortages or delays of supplies from subcontractors or other circumstances beyond which the Seller has no influence, seller is liable to buyer. The situation of a subcontractor shall be considered force majeure if there is an obstacle to the subcontractor which is covered by the above and which the Seller should not have avoided or overcome.
18.7 In these cases, the Seller is entitled to cancel the order in whole or in part or to deliver the order once the fulfillment barrier has ceased.
18.8 If the fulfilment period lasts for more than 60 days, either party may terminate the Agreement by written notification to the other Party with a written notice of 15 days.
18.9 The buyer may not claim a proportionate refusal, natural fulfilment or compensation of any kind in the event of force majeure.
19. Duration and termination of the agreement
19.1 Duration of the agreement. The agreement runs according to the period agreed between Seller and Buyer, as set out in the Agreement. TheReafter, Seller reserves the right to extend the Agreement automatically by 1 year, unless the Agreement has been terminated by one of the parties in accordance with the following rule.
19.2 Termination of the agreement. The Agreement may be terminated by either Party with 6 months’ written notice at the end of the period agreed between the Parties, which is also set out in the Agreement.
19.3 Duration of emergency and consultancy agreements. Contingency and Consultancy agreements run from the conclusion of the agreement between Seller and Buyer.
19.4 Termination of emergency and consultancy agreements. Emergency and consultant agreements may be terminated by any party with 3 months’ written notice until the end of one month.
20. Personal data
20.1 Buyer is responsible for compliance with applicable laws in
buyer’s use of Seller’s Products for the processing of personal data.
21. Professional secrecy
21.1 Each Party is obliged to treat all information about the other Party and on the contractual relationship confidentially. This applies even after the agreement has ended. However, unless otherwise specified in the Agreement, the Seller is entitled to disclose the existence and form of the
to prospects and business partners, including the Seller is entitled to use buyer’s name as a reference.
22.1 Neither party may transfer its rights and obligations to third parties without the consent of the other, except for the transfer of the Seller’s entire business or part thereof. Moreover, consent can only be refused if there is an objective reasonable justification for it.
23. Obsolescence of claims
23.1 After the one year after the date of conclusion of the Agreement between Seller and Buyer, buyer may not make any claim of any kind in connection with the Agreement to the Seller.
24. Disputes and choice of law
24.1 This Agreement and all its supplements are subject to Danish law.
24.2 Any dispute arising out of this Agreement, including disputes concerning the existence or validity of the Agreement, shall be addressed by mediation before the Arbitration Institute in accordance with the rules adopted by the Arbitration Institute applicable when the request for mediation is lodged.
24.3 If the mediation is terminated without the dispute being resolved, the dispute shall be settled by arbitration by the Arbitration Institute in accordance with the rules adopted by the Arbitration Institute, which are applicable by the
the opening of the arbitration proceedings. Unless the parties agree that the arbitral tribunal shall consist of only one arbitrator, each party shall appoint an arbitrator and the chairman of the arbitral tribunal shall be appointed by the Foundation.
25. Disclosure and acceptance of the above terms
25.1 These Terms are provided to – and accepted by – buyer upon the purchase of Products, including consultancy services, service agreements and/or contingency agreements from the Seller.