General terms and conditions of sale and delivery (hereinafter referred to as the “terms”) apply to all agreements on Encida ApS, CVR number 40318127, (hereinafter referred to as “Encida”) sale and delivery of products and related services to business customers.
Terms of Sale and Delivery repeal and supersede all previous editions.
2. Agreement Basis
The terms, together with Encida’s offers and order confirmations, constitute the entire contractual basis for Encida’s sales and delivery of products and related services to the customer (hereinafter referred to as the “agreement basis”). The customer’s purchase terms printed on orders or otherwise notified to Encida do not form part of the agreement basis.Amendments and additions to the basis of agreement are only valid if the parties have expressly agreed in writing.
Amendments and additions to the basis of agreement are only valid if the parties have express-ly agreed in writing.
3. Products and Services
Products that Encida sells and delivers to the customer comply with Danish legislation upon delivery.
Associated services that Encida sells and delivers to the customer in connection with the sale and delivery of products are performed correctly and comply with Danish legislation upon delivery.
Products and related services that Encida sells and delivers to the customer are intended to perform, analyse, document, and organise tests. Notwithstanding any conflicting terms in the agreement basis, Encida is in no case liable for losses or damages that can be attributed to use for other purposes. The customer must indemnify Encida to the extent that Encida may be liable for such loss or damage.
4. Price and Payment
The price for products and related services follows Encida’s current price list at the time Encida confirms the customer’s order unless the parties have agreed otherwise in writing. All prices are exclusive VAT.
The customer must pay all invoices for products or related services within 30 days net from the invoice date or in cash upon receipt unless the parties have agreed otherwise in writing.
5. Late Payment
If the customer fails to pay an invoice for products or related services on time, for reasons for which Encida is not responsible, Encida is entitled to interest on the due of 1% per. Month from due date until payment is made.
If the customer fails to pay an overdue invoice for products or related service no later than 14 days after receiving a written demand for payment from Encida, Encida has, in addition to interest according to p. 5.1 right to: (1) cancel the sale of the products and/or related services to which the delay relates, (2) cancel the sale of products and/or related services that have not yet been delivered to the customer, or demand advance payment for this, and/or (3) assert other powers of non-compliance.
6. Offers, Orders and Order Confirmations
Encida’s offer is valid for 10 days from the date the offer is dated unless otherwise stated in the offer. Acceptance of offers received by Encida after the expiry of the acceptance period is not binding on Encida, unless Encida notifies the customer otherwise.
The customer must send orders for products or related services to Encida in writing. An order must contain the following information for each ordered products or service: 1) item number, 2) quantity, 3) price, 4) payment terms, 5) delivery data and 6) deliver address.
Encida strives to send confirmation or rejection of an order for products or related services to the customer in writing no later than 5 working days after receipt of the order. Confirmation and rejections of orders must be in writing to bind Encida.
The customer may not change a placed order for products or related services without Encida’s written consent.
If Encida’s confirmation of an order for products or related services does not comply with the customer’s order or the Basis of Agreement, and if the customer does not wish to accept the non-compliant terms, the customers must notify Encida in writing within 5 working days or receiving the order confirmation. Otherwise, the customer is bound by the order confirmation.
Encida delivers all products sold and related services by the time stated in Encida’s order confirmation. Encida has the right to deliver before the agreed delivery time unless the parties have agreed otherwise.
The customer must inspect all products and related services upon delivery. If the customer discovers an error or deft that the customer wishes to invoke, it must be notified to Encida in writing immediately. If an error or defect that the customer discovers or should have discovered is not immediately notified in writing to Encida, it cannot be claimed later.
8. Delayed Delivery
If Encida expects a delay in the delivery of products or related services, Encida informs the customer about it and at the same time states the reason for the delay and new expected delivery time.
If Encida is unable to deliver products or related services at the agreed delivery time for reasons for which Encida is responsible and delivery does not take place within a reasonable time of at least 15 working days, the customer is entitled to demand a proportionate refusal or compensation if the conditions for compensation are met. The customer has no other rights due to delayed delivery.
9. Errors and Omissions
Encida is not responsible for errors or omissions caused by 1) installation, use or maintenance contrary to Encida’s instructions or general practice, 2) repair/support or modification performed by anyone other than Encida, and 3) other matters, for which Encida is not responsible.
If the customer discovers an error or defect within 12 months of delivery that the customer wishes to claim, it must be notified to Encida immediately in writing. If an error or defect that the customer discovers or should have discovered is not immediately notified in writing to Encida, it cannot be claimed later. The customer must provide Encida with the information about a reported defect or defect that Encida requests.
Encida notifies the customer within a reasonable time whether the fault or defect can be rectified and within what time horizon rectification can be expected.
Each party is liable for its own actions and omission under applicable law with the limitations that follow from the Basis of Agreement.
Encida is responsible for product liability in respect of delivered products, insofar as such liability follows mandatory legislation. In addition, the customer must indemnify Encida to the extent that Encida may incur product liability.
Encida is not responsible for errors and omissions to the extent that these are caused by external factors including other software or products. Encida is also not responsible for the usability of the products in relation to the specific use that the customer wants, including integration of or interaction between the products and the customer’s own equipment and software environment or third-party systems. Furthermore, Encida is not liable for losses incurred because of the customer using the products in violation of the Basis of Agreement, or the customer has otherwise, through negligent conduct, contributed to the occurrence of the damage.
Notwithstanding any conflicting terms in the Basis of Agreement, Encida is not liable to the customer for indirect losses, including loss of production, sales, profits, time or goodwill, unless caused intentionally or through gross negligence.
Notwithstanding any conflicting terms in the agreement, Encida is not liable to the customer for non-fulfilment of obligations that may be subject to force majeure. The discharge lasts as long as force majeure lasts. Force majeure are matters which are beyond Encida’s control and which Encida should not have foreseen at the conclusion of the agreement. Examples force majeure are unusual natural conditions, war, terror, fire, flood, vandalism and labour disputes.
11. Customer Violation
The customer’s use of the products in violation of the contract basis entails liability for damages in accordance with the general principles of tort law as well as payment of fines.
In particular, the customer’s copying, transfer of the products to third parties, including internally with customer, subsidiaries, sister companies, group companies, etc. is considered a material breach of the agreement between the parties.
In addition to ordinary liability, the customer is obliged to pay a fine corresponding to the value of 12 months’ license fee (e.g. per copied/transferred/passed on product). The penalty is due immediately upon demand and does not affect the compensation statement.
12. Intellectual Property Rights
All intellectual property right in Encida’s products, including all copyrights, trademarks and other intellectual property rights in the products incorporated or used in the products, belong solely to Encida, their subcontractor or third parties.
Unless otherwise agreed, the Basis of Agreement between the parties does not imply that all or part of any ownership to any rights is transferred to the customer.
Separate terms apply to the customers use of Encida’s software, to the extent that the intellectual property rights to the software belong to third parties (e.g. third party software) or is software owned by Encida, for which Encida has established or sets separate license terms. In such cases, the customer acquires the exclusive right to use such software in accordance with the separate terms and conditions set forth by any third party or Encida at any time, including license terms for software owned by third parties or Encida.
Encida is entitled to utilise any general knowledge, including information technology, ideas, concepts, know-how or techniques, that Encida obtains in connection with the delivery of the products. Encida is thus entitled in relation to third parties to develop, manufacture, supply, and trade identical or similar products.
The customer may not pass on, use, or enable others to use Encida’s trade secrets or other information of any kind that is not publicly available.
The customer must not in an improper manner obtain or attempt to obtain knowledge of or access to Encida’s confidential information as described in section 12.1. The customer must handle and store the information properly to prevent it from accidentally coming to the knowledge of others.
The customer’s obligations according to p. 12.1-12.2 applies during the parties’ trade and without time limit after the termination of the trade, regardless of the reason for the termination.
14. Place of Jurisdiction and Applicable Law
In the event of a disagreement between the parties in connection with this agreement, the parties shall, with a positive, cooperative, and responsible attitude, seek to enter negotiations in order to resolve the dispute. If necessary, the negotiations must be sought to be raised to a high level in the parties’ organisations.
If it is not possible to resolve the dispute through negotiations, each party is entitled to bring the case before the Maritime and Commercial court in Copenhagen as jurisdiction in the first instance.
If the Maritime and Commercial Court does not have substantive jurisdiction to hear the case, the case or the claim for a decision is referred to the district court competent pursuant to the Danish Administration of Justice Act cf. section 225 of the Danish Administration of Justice Act.
All agreements between Encida and the customer are exclusively subject to Danish law, and unless otherwise stated, the general rules of Danish law in the mutual relations of the parties apply