Terms And Conditions of Sale And Delivery
TERMS AND CONDITIONS OF SALE AND DELIVERY
1. BACKGROUND AND SCOPE
1.1 These Terms and Conditions of Sale and Delivery shall apply to any collaboration, transaction, or business relationship between Fourcom ApS (“Fourcom”) and the customer, unless otherwise agreed in writing between the parties.
1.2 The relationship with Fourcom may arise either through the customer’s purchase of products or through agreements under which the customer acts as a reseller of Fourcom’s products. Accordingly, these Terms and Conditions of Sale and Delivery may not be applicable in all respects to all customers.
1.3 Any reference in these Terms and Conditions of Sale and Delivery to a “customer” shall include both customers and resellers.
2. ORDERS AND DELIVERY
2.1 Any order, as well as any quotation submitted by Fourcom’s sales representatives, shall only be deemed accepted by Fourcom upon Fourcom’s written order confirmation. Such confirmation shall include an estimated delivery date and the total purchase price. Upon request, the customer will receive login credentials for access to Fourcom’s B2B webshop.
2.2 Unless otherwise agreed in writing, any confirmed delivery date shall be regarded as an estimate only and shall not be binding upon Fourcom.
2.3 Any agreed delivery date shall, in all respects, be subject to strikes, lockouts, natural disasters, epidemic outbreaks, and/or other circumstances preventing timely delivery which are beyond Fourcom’s reasonable control.
2.4 Should Fourcom become aware that timely delivery will not be possible, Fourcom shall notify the customer in writing, including a revised estimated delivery date.
2.5 If the customer does not accept the revised estimated delivery date pursuant to Clause 2.4, the customer shall be entitled to cancel its purchase of the affected products.
3. PRICES
3.1 For customers purchasing Fourcom products who are not resellers, prices are available through Fourcom’s webshop or upon request.
3.2 All prices provided to customers and resellers are stated in Danish Kroner (DKK), Swedish Kronor (SEK), Euro (EUR), and U.S. Dollars (USD), exclusive of VAT.
4. TECHNICAL INFORMATION, PRODUCT INFORMATION, AND RELATED MATTERS
4.1 All technical specifications, product information, and similar information contained in, for example, brochures, catalogues, and price lists shall be regarded as approximate and non-binding unless otherwise specifically agreed between the parties.
5. PRODUCT MODIFICATIONS
5.1 Fourcom reserves the right to make changes to product design, manufacturing methods, and similar matters that Fourcom considers necessary prior to delivery.
5.2 Such modifications shall only entitle the customer to cancel its order if the customer can demonstrate that a specific design, manufacturing method, or similar characteristic constituted a material prerequisite for placing the order.
5.3 Any cancellation of an order pursuant to Clauses 5.1 and 5.2 shall not entitle the customer to compensation or damages of any kind.
6. COSTS
6.1 All prices stated in price lists, order confirmations, and similar documents are exclusive of transportation costs, VAT, duties, taxes, customs charges, and any other governmental levies unless otherwise agreed in writing.
7. DELIVERY, PAYMENT, AND RISK
7.1 Where it is agreed that the customer shall arrange transportation, deliveries shall be sold Ex Works (Incoterms® 2020) from Fourcom’s warehouse or other designated location.
7.2 Where it is agreed that Fourcom shall arrange transportation, deliveries shall be sold Delivered at Place (DAP) (Incoterms® 2020) from Fourcom’s warehouse or other designated location.
7.3 The applicable delivery term shall be specified in the agreement between the parties, including the order confirmation.
8. PAYMENT TERMS
8.1 Unless otherwise agreed in writing, invoices shall be due for payment upon issuance unless otherwise stated on the invoice. Invoicing shall take place when an order has been dispatched from Fourcom.
8.2 If the customer fails to pay any invoice when due, Fourcom shall be entitled to charge interest at a rate of 2% per month. Furthermore, Fourcom shall be entitled to reminder fees in accordance with applicable legislation. Any payments received shall first be applied towards accrued interest.
8.3 All products delivered by Fourcom shall remain the property of Fourcom until full payment has been received.
8.4 Fourcom shall be entitled to unilaterally amend the applicable payment terms if the customer fails to pay one or more invoices when due, or if Fourcom has reasonable grounds to believe that the customer may be unable to fulfil its payment obligations, provided that the customer shall be given an opportunity to refute such concerns.
8.5 Fourcom shall at all times be entitled to withhold delivery of products if the customer fails to pay one or more invoices when due.
8.6 Unless otherwise agreed in writing, the customer shall not be entitled to set off any claim against Fourcom or withhold payment of any amount due to Fourcom.
8.7 If the customer fails to collect products within seven (7) days after the products have been made available Ex Works from Fourcom’s location, Fourcom shall, in addition to the purchase price, be entitled to charge an administration fee of DKK 265.00 per order and any customary storage costs. Fourcom shall furthermore be entitled, but not obligated, to dispatch the order to the customer at the customer’s expense and risk.
9. DEFECTS
9.1 The customer shall be obliged to carry out a thorough inspection of the products upon delivery to ensure that the products are not affected by any visible defects.
9.2 Fourcom undertakes to carry out replacements or repairs (at Fourcom’s discretion) within six (6) months following delivery if the delivered products are affected by defects caused by defective construction/manufacturing or materials.
9.3 In the event that a defect is caused by lack of maintenance, improper use, technical interventions or modifications carried out without Fourcom’s written consent, extraordinary climatic influences, or normal wear and tear, Fourcom shall not be obliged to accept any requests for replacement or repair.
9.4 If the customer wishes to invoke Clause 9.1, such notice shall be given in writing immediately and no later than five (5) days after the customer has or ought to have become aware that the product is affected by a defect, and shall include full documentation of the defect.
9.5 If Fourcom accepts a claim pursuant to Clause 9.1, the customer shall bear all costs and risks associated with transportation to Fourcom. Replaced or repaired products returned to the customer shall be shipped CPT (Incoterms® 2020).
9.6 If Fourcom carries out inspections, including testing, of a product which the customer has alleged to be defective, and such inspections or tests demonstrate that the product is in fact not defective, the customer shall be invoiced for all work performed by Fourcom.
10. LIABILITY
10.1 Fourcom shall only be liable for the replacement or repair of defective products in accordance with Clause 9.1 and may under no circumstances, including as a result of delayed delivery, be held liable for any losses suffered by the customer, including indirect losses.
10.1.1 If a third party asserts a claim against Fourcom involving liability beyond the terms set out in Clauses 9 and 10 of these Terms and Conditions of Sale and Delivery, the customer shall indemnify and hold Fourcom harmless for any losses incurred in excess of Fourcom’s liability towards the customer.
10.2 Product Liability
10.2.1 Under no circumstances, except as required by mandatory provisions of applicable product liability legislation, shall Fourcom be held liable for damage arising from defects in the purchased products.
10.2.2 In all circumstances, Fourcom’s liability shall be limited to one hundred percent (100%) of the purchase price of the product or products concerned.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Any use of Fourcom’s intellectual property rights, including but not limited to logos, images, designs, technical know-how, goodwill, and similar rights, shall be subject to Fourcom’s approval or disapproval. Furthermore, all such intellectual property rights shall remain the property of Fourcom, and any approval of the customer’s use thereof shall not constitute a transfer of rights nor an acceptance of any use by the customer outside the scope of the parties’ cooperation.
12. RIGHT OF USE
12.1 The customer’s right to use software products, including licences, shall be strictly limited to the intended scope of use of the product, including the written user instructions and/or licence terms supplied by Fourcom or, where applicable, by the manufacturer if the manufacturer is a separate entity. The customer is strictly prohibited from using the products for any other purpose or in violation of such user instructions or licence terms and shall comply with and observe all applicable user instructions and licence terms.
12.2 The customer’s right of use relating to purchased software products shall, in all respects, be considered non-transferable and non-exclusive.
12.3 The customer’s right of use is conditional upon timely payment of all invoiced amounts.
12.4 If the customer fails to comply with the applicable user instructions or licence terms, or fails to pay invoiced amounts when due, such failure shall constitute a material breach of the parties’ agreement.
13. FORCE MAJEURE
13.1 In the event of a Force Majeure Event preventing Fourcom from performing its obligations under the agreement with the customer, Fourcom shall promptly notify the customer, providing full details of the Force Majeure Event and the reasons why such Force Majeure Event prevents or delays Fourcom’s performance of its obligations under the agreement. Fourcom shall use reasonable efforts to mitigate the effects of the Force Majeure Event on the performance of the agreement and to fulfil its obligations thereunder.
13.2 A Force Majeure Event means any event or circumstance beyond the affected party’s control, fault, or negligence, which the affected party could not have prevented through the exercise of due diligence, provided that such event or circumstance is limited to the following:
a.) riots, war, invasion, acts of foreign enemies, hostilities (whether war is declared or not), acts of terrorism, civil war, rebellion, revolution, military uprising or usurped power, requisition or compulsory acquisition by any governmental or competent authority;
b.) ionising radiation or contamination by radioactivity from any nuclear fuel or nuclear waste resulting from the combustion of nuclear fuel, radioactive toxic explosives, or other hazardous properties of any explosive nuclear assembly or nuclear component;
c.) pressure waves caused by aircraft or other airborne devices travelling at sonic or supersonic speeds;
d.) earthquakes, floods, fires, or other physical natural disasters, excluding weather conditions regardless of severity;
e.) nationwide strikes or labour disputes, or strikes or labour disputes involving labour not employed by the affected party, its subcontractors, or suppliers, and which affect a substantial portion of the work, excluding any labour dispute specific to the performance of the work or this agreement; and
f.) epidemic or pandemic outbreaks of disease affecting a party’s ability to fulfil its obligations.
14. TERMINATION
14.1 General Termination
14.1.1 Fourcom shall be entitled to terminate any agreement if the customer materially breaches any agreement between the parties.
14.2 Termination of Reseller Relationships
14.2.1 In addition to Clause 14.1, Fourcom shall be entitled at any time and without cause to terminate its cooperation with resellers by giving three (3) months’ notice.
14.2.2 A reseller shall be entitled to terminate the cooperation without notice. However, the reseller shall remain obligated to pay any outstanding amounts relating to confirmed orders.
14.2.3 If a reseller agreement is terminated, whether by the reseller or by Fourcom, and the reseller remains in possession of unsold Fourcom products upon expiry of the notice period, Fourcom shall have the right, but not the obligation, to repurchase such products from the reseller at an amount corresponding to the reseller’s purchase price.
15. RETURN POLICY
15.1 No orders may be returned or refunded unless otherwise agreed in writing.
15.2 If Fourcom accepts a request to return delivered products, Fourcom shall be entitled to require that the products are in perfect condition and in their original packaging. Fourcom shall furthermore be entitled to charge an administration fee equal to ten percent (10%) of the product value. Any refund shall also be subject to price adjustments and shall be adjusted in accordance with the prices applicable on the date of the refund.
16. DATA PROTECTION
16.1 In all matters relating to personal data protection, Fourcom refers to its applicable Privacy Policy, which is available at www.fourcom.dk.
17. SEVERABILITY
17.1 If one or more provisions of these Terms and Conditions of Sale and Delivery are held to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable between Fourcom and the customer.
18. MISCELLANEOUS
18.1 The parties agree that a reseller shall be regarded as an independent contractor and that the cooperation shall in no way be construed as creating an employment relationship, agency, joint venture, exclusive distributorship, franchise, sales representative relationship, or any other relationship than that expressly set out in these Terms and Conditions of Sale and Delivery.
19. ASSIGNMENT OF RIGHTS
19.1 Fourcom shall be entitled to assign its rights and/or obligations under any agreement with its customers, including these Terms and Conditions of Sale and Delivery, to a third party.
20. GOVERNING LAW AND JURISDICTION
20.1 The agreement between Fourcom and its customers, including these Terms and Conditions of Sale and Delivery, and any dispute arising out of or in connection therewith, shall be governed by the laws of Denmark.
20.2 Any dispute between Fourcom and a customer shall be submitted to the District Court of Aalborg as the court of first instance.
21. AMENDMENTS
21.1 Fourcom shall be entitled to unilaterally amend these Terms and Conditions of Sale and Delivery, and the current version shall at all times be available at www.fourcom.dk.
