TERMS AND CONDITIONS OF SALE
- CONTROLLING PROVISIONS
All deliveries of products and services (“Products”) from DASPOS A/S (“DASPOS”) to any customer (“Customer”) shall be governed exclusively by these Terms and Conditions of Sale (“Terms and Conditions”). DASPOS’ acceptance of Customer’s offer is expressly conditioned upon Customer’s acceptance of these Terms and Conditions and no addition to or modification shall be binding on DASPOS unless expressly agreed to in writing.
- ORDER CONFIRMATION
DASPOS shall not be deemed to have accepted a purchase order until written, including electronic, confirmation of the order from DASPOS is received by Customer or DASPOS has received written, including electronic, timely and unconditional acceptance from Customer of DASPOS’ quotation.
- TERMS OF DELIVERY
- Risk of Loss: Delivery terms shall be EXW (Ex Works), as per latest INCOTERMS Edition, with risk of loss passing to Customer when ready for dispatch at DASPOS’ warehouse. Customer will be informed about readiness for dispatch.
- Responsibility: DASPOS shall not be responsible for damage incurred during transportation. Claims for lost or damaged shipments shall be filed directly to the carrier by Customer. DASPOS shall not be liable for any damage occurring as a result of late delivery or lost shipments. Any discrepancies in shipment must be reported within 5 working days of receipt.
All DASPOS prices are exclusive of VAT, carriage, tariffs, charges, other duties, etc. Prices are not including installation costs.
Disposable packing is included in the stated price and will not be credited if returned.
- PAYMENT TERMS
Subject to credit approval by DASPOS, payment terms are net cash unless otherwise agreed. Should DASPOS fail to approve Customer’s credit or should DASPOS reverse its approval of credit for any reason whatsoever, the terms of payment, at DASPOS’ option, shall be full advance payment prior to shipment. DASPOS reserves the right to withhold any and all shipments if Customer’s account is past due. The purchase price shall be paid in full without regard to any setoffs claimed by Customer.
In case of late payment as per the invoiced payment terms, default interests will be charged.
Customer agrees to provide DASPOS with its assigned tax exemption number. Customer agrees to pay, in addition to the purchase price, all applicable sales, use, excise, value added or other similar taxes.
- PRODUCT ALTERATIONS
Provided that no agreed technical specification is changed, DASPOS reserves the right to make alterations to Products without notice.
DASPOS warrants that all Products will be free from defects in design, materials or workmanship for a period of 12 months from the date of delivery.
Under this warranty, DASPOS’ full and exclusive obligation shall be to repair or replace any Product, that according to DASPOS’ investigations during the warranty period is found to be defective in design, materials or workmanship, subject to Customer’s forwarded claim (see § 11 below) within 12 months from delivery of the Product.
Daspos ensures that products and components can be serviced and supplemented for a minimum of 2 years from delivery. For products that are included in deliveries through external suppliers, i.e. IT hardware, it is ensured that full compatibility with similar products can be achieved, in case the external product may be discontinued as a standard delivery option from a subcontractor.
If DASPOS’ investigations show that the Product is not defect, the Product is returned to the Customer. Freight and insurance to be paid for by the Customer. If a warranty related Product defect is found, DASPOS returns the repaired or forwards a replacement Product to the Customer and take over exchanged parts or the defect Product. DASPOS pays for freight and insurance. The Customer cannot make any further claims against DASPOS due to defect Products.
DASPOS shall not be obligated to refund the purchase price, nor shall it be obligated to pay for any labour or costs associated with the removal of the defective Products or the reinstallation of those Products. No warranty coverage will be provided for Products that have been altered, used for a purpose other than that for which they were designed or installed contrary to DASPOS’ instructions.
DASPOS makes no warranties or representations, express or implied, as to the products, except as set forth above. DASPOS hereby disclaims all implied warranties, including but not limited to, implied warranties of merchantability or fitness for a particular purpose. In no event will DASPOS be liable for any lost profits or for any direct, indirect, incidental, consequential, punitive or other special damages arising out of or related to its products regardless of whether such damages are sought based on causes of action sounding in tort, contract, negligence, strict liability or breach of warranty.
- WARRANTY PROCEDURES
To make a claim under the express warranty set forth in paragraph 10, Customer must
- Notify DASPOS immediately of the alleged defect;
- Provide the part number, serial number, and description of the problem of the potentially defective Product;
- Obtain a Return Material Authorization number from DASPOS, which shall be valid for 30 days;
- Return the potentially defective Product, insurance and freight prepaid, with the outside of the package bearing the required return number to DASPOS,
- Include a written detailed statement of the reason why the Product is being returned; and
- Ship the Products free of extraneous equipment.
If a replacement Product is required, a Purchase Order must be provided to DASPOS to purchase the replacement product. Only a current DASPOS Customer may order the replacement Product. An invoice will be created and mailed to the purchasing Customer upon shipment of the replacement Product. Provided the returned Product complies with the limited warranty and not physically damaged, DASPOS will credit the invoice for the purchased replacement Product.
- NON-WARRANTY RETURNS
Subject to prior approval by DASPOS, unused standard Products can be returned within two (2) months of the DASPOS invoice date provided the Products are returned in original packaging and both Products and packaging are free from defects. The Products must be returned to DASPOS with insurance and freight prepaid.
Products built or ordered to custom specifications or Products that have been modified by the customer cannot be returned for credit under any circumstances.
- CHANGE ORDER REQUES
An accepted order that is scheduled to ship within the quoted lead time can be delayed once up to a maximum of 30-days. Orders outside of the quoted lead time can be changed or cancelled, but must be confirmed by DASPOS in writing. Cancelled orders are subject to a charge equal to 30% of value for standard Products. Custom or customer specific Product orders cannot be cancelled.
- PRICE ADJUSTMENTS
DASPOS reserves the right to adjust accepted prices for non-delivered Products in the event of alterations in rates of exchange, variations in costs of materials, sub-suppliers’ price increases, changes in wages, state requisitions or similar conditions over which DASPOS has no or limited control.
Prices for installation work, including turnkey project installation, has been given on condition that the requester/buyer ensures that the work can be accessed without hindrance throughout the installation period of DASPOS’s installers and that the work can to be carried out without hindrance from the work site side. Additional costs arising due to delay, regardless on reason, is responsibility of requester/buyer and will be invoiced.
- GROUP SET-OFF
DASPOS, and any other company in the DASPOS Group, shall be entitled to set off own claims against the Customer, in the Customer’s possible claims against any of said companies.
- PRODUCT INFORMATION
Any information – whether originating from DASPOS or a DASPOS business contact – including but not limited to, information on weight, dimensions, capacity or any other technical data in catalogue descriptions, advertisements, etc., shall be considered informative, and are only binding if and to the extent, that explicit reference on this is made in offers and/or order confirmations. Specific demands from the Customer are only binding if and to the extent they have been confirmed by DASPOS in writing.
- PROPRIETARY INFORMATION AND CONFIDENTIALITY
Any non-public information, including but not limited to, drawings, descriptions and any other technical documents, which DASPOS has made or may make available to the Customer (“Technical Information”) shall remain the property of DASPOS and shall be treated as confidential by Customer and its representatives and must not, without the written consent of DASPOS, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available. Confidential Information shall be returned to DASPOS upon request.
- PRODUCT LIABILITY
DASPOS shall not be liable for any damage to real property or chattels caused by the Product after it has been delivered and whilst it is in the possession of the Customer. Nor shall DASPOS be liable for any damage to products manufactured by the Customer or to products of which the Customer’s products form a part. In no circumstances, the customer shall be liable to reimburse operating loss, loss of time, loss of profit or other indirect loss (consequential loss or damage).
The liability which the customer may incur shall be limited to 1 million USD in respect of each individual instance of damage. A series of accidents arising out of the same fault or act of negligence shall for this purpose constitute one single instance of damage. The Customer’s total liability shall in any case be limited to the contract sum specified in the contract. The Customer is obliged to enter into the same court or arbitration proceeding, which deal with the compensation claim process against the outfitter concerning the repair work in question.
If DASPOS incurs liability towards any third party for such damage as described in the preceding paragraph the Customer shall indemnify, defend and hold DASPOS harmless. Customer shall indemnify and hold DASPOS harmless for all claims arising from any damage resulting from the use or operation of the Products because of any improper repair, maintenance or operation of the Products by Customer, the failure of Customer to adequately train personnel in the operation of the Products, Customer’s failure to comply with applicable laws or regulations or otherwise. If a claim for damage as described in this clause is lodged by a third party against either DASPOS or the Customer, the respondent party shall immediately inform the other party thereof in writing.
The Customer shall be obliged to let itself be summoned to the court or arbitral tribunal examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product.
- SECONDARY DAMAGE
Daspos shall not be held responsible for any special, indirect, consequential, punitive or exemplary damage or loss, which might arise out of any breach of warranty, faulty products, delay in the delivery of the products, product liability, recall or otherwise, irrespective of the cause, including but not limited to, loss of production, loss of profit and loss of goodwill.
- MANDATORY LIABILITY
Nothing in these Terms (including but not limited to the exclusions and limitations in clause 18 to 19) shall operate in order to exclude or limit the liability of either party to the other for death or personal injury arising out of its negligence, fraudulent misrepresentation or for any other liability which cannot be excluded or limited by law.
- NOTICE OF CLAIMS
Claims or complaints as to defects of the Products or other claims shall be submitted in writing by Customer to DASPOS without undue delay.
- INTELLECTUAL PROPERTY RIGHTS
If the Product is delivered with embedded software, Customer obtains a non-exclusive, software license in form of a right of use to the software solely for the purposes set out in the applicable specification of the Product. Aside from this, Customer obtains no rights in form of license, patent, copyright, trademark or other proprietary right connected to the Products. Customer shall not obtain any rights to source codes to such software.
- RESTRAINT ON RESALE AND USE FOR CERTAIN PURPOSES
Customer is not allowed to use or to resell the Products for purposes which have any connection to chemical, biological or nuclear weapons or for missiles which are capable of delivering such weapons. Customer is not allowed to sell the Products to persons, companies or any other kind of organization if Customer has knowledge of or suspects that said persons or entities are related to any kind or terrorist or narcotics activities. The Products may be subject to legal regulations and restrictions and may therefore be subject to restrictions in case of sale to countries/customers covered by export and import ban. These restrictions shall be observed in case of resale of the Products to such countries/customers.
Customer is not allowed to resell the Products if there is doubt or suspicion that the Products can be used for the purposes mentioned in the preceding paragraph. If Customer receives knowledge of or suspects that the conditions in this clause have been violated, Customer shall immediately inform DASPOS.
- FORCE MAJEURE
No Party shall be liable for any failure to perform its obligations where such failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity [or telephone service], and no other Party will have a right to terminate this Agreement under such circumstances.
- PARTIAL INVALIDITY
If one or more of the terms and conditions in these Terms and Conditions or any part of a term is deemed invalid, unenforceable, illegal or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall not be affected or diminished thereby.
- CHOICE OF LAW AND FORUM
Any dispute between the parties arising from or in connection with a purchase agreement governed by these Terms and Conditions shall be settled pursuant to the laws of Denmark with the exception of the conflict of law provisions. The parties agree that Danish courts shall be the exclusive forum for any dispute arising under this order. The parties expressly waive any objections based on personal jurisdiction or venue and consent to service of process by certified mail, return receipt requested.