General Conditions

For the sale and supply of e-learning, courses, know-how, training and support

1. Preamble

1.1.  The General Conditions shall apply to the contractual relationship between the parties and shall form part of the contract between the parties, unless specifically excluded in writing.

1.2.  The General Conditions are valid as of 1st November 2012 and supersede all previous conditions.

2. Data in Product Information and Price Lists

2.1. Data in USabcd’s product information and price lists are binding only to the extent that they are by reference expressly included in the contract between the parties.

3. Teaching material and other Documents

3.1. All teaching materials and other documents regarding the e-learning, courses, know-how, training and support or its manufacture submitted by one party to the other shall remain the property of the submitting party. All above mentioned or any other information received by one party shall not, without the consent of the other party, be used for any other purpose than that for which they were submitted. They may not without the consent of the submitting party be copied, reproduced, transmitted or otherwise communicated to a third party.

4. Purchase Orders, Confirmations, Quotations

4.1.  In order to become binding upon USabcd all purchase orders shall be confirmed in writing by USabcd.

4.2.  Price quotations submitted by USabcd are valid for 30 days from date of quotation unless otherwise agreed.

5. Software license

5.1.  If the Buyer purchases a copy of software systems owned by USabcd and marketed in connection with USabcd’s equipment (the Software), the Buyer obtains no title to such Software (including source code, manuals and other documentation material), but solely a perpetual (unless otherwise agreed in the contract), non-exclusive, non-transferable (other than to an affiliate, see Clause 5.2. below) right to use the Software on one computer (by the Buyer’s own choice) connected to the appurtenant equipment or one equipment unless otherwise agreed upon between the parties. If not otherwise stipulated by mandatory law, the Buyer may not copy, alterate, decompile or reverse engineer the Software without the express written consent of USabcd.

5.2.  The Buyer may transfer the Software to an affiliated company (i.e. an entity directly or indirectly controlling or controlled by the Buyer), provided the affiliated company agrees to be bound by the terms and conditions set forth in these General Conditions and the contract between the Buyer and USabcd.

5.3.  The Software is delivered on any media subject to USabcd’s choice, together with any hardware necessary for installing the software and connecting it to the equipment. Unless otherwise agreed, the Buyer shall perform installation and functionality test of the Software in accordance with USabcd’s user manuals. Moreover, the provisions in Clauses 6 and 7 below regarding delivery, passing of risk and delay shall apply.

5.4.  Unless otherwise agreed, the price of the Software is determined as a one-time payment. Moreover, the terms and conditions regarding prices and payment stipulated in Clauses 8 and 9 below shall apply.

5.5.  USabcd warrants that the Software will perform in accordance with user manuals and other specific information material delivered by USabcd according to the contract. The warranty period and other conditions regarding the warranty, including error identification and correction, are stipulated in Clause 11 below. However, the warranty does not cover the Software’s ability to interoperate with the Buyer’s or any third party’s hardware and/or other software. Neither shall such lack of interoperability be deemed a defect in the Software.

6. Delivery, Passing of Risk

6.1.  Delivery shall take place ex works (EXW) the USabcd warehouse stated in the order confirmation unless otherwise agreed upon in writing. Ex works shall be construed in accordance with the INCOTERMS in force at the time of delivery. Delivery times are approximate and subject to the conditions set forth in Clauses 7 and 15 unless otherwise agreed.

6.2.  Partial shipments shall be permitted unless otherwise agreed.

6.3.  Unless the Buyer has submitted specific shipping instructions in writing, dispatch will be arranged in accordance with USabcd's choice.

6.4.  Freight claims must take place at the latest seven (7) days after receipt of goods.

7. Time of Delivery, Delay

7.1.  For the avoidance of doubt, time of delivery shall not be of the essence. USabcd assumes no liability for any delay and shall not be obliged to pay any damages, compensation, expenses or penalties incurred due to any delay. The procedure to be followed in the event of delay is set out in Clauses 7.2 and 7.3 below (and subject to Clause 15).

7.2.  If USabcd is unable to deliver the equipment, software, consumables, or spare parts at the agreed time of delivery or if delay on USabcd's part seems likely, USabcd shall notify the Buyer thereof in writing, stating the reason for the delay and the time when delivery can be expected.

7.3.  If USabcd does not deliver within the expected time of delivery (Clause 7.2), and this is not due to any circumstance for which the Buyer is responsible, then the Buyer may, by notice in writing to USabcd, terminate the contract only in respect of that part of the equipment, software, consumables, or spare parts which cannot be put to its intended use as a result of USabcd’s failure to deliver.

8. Prices

8.1.  Unless otherwise agreed in writing prices are in accordance with USabcd’s price lists applicable at the date of order confirmation. Prices are stated in Euro (EUR), or in US Dollars (USD). The prices are based on delivery according to Clause 6.1 and exclusive of any taxes or duties.

8.2.  The applicable price list shall be valid as stated on the actual price list unless the Buyer is informed otherwise by USabcd.

8.3.  USabcd reserves the right to change prices in case of technical changes and/or significant fluctuations in cost of parts and labour, and/or interventions on the part of the Authorities.

8.4.  A handling fee will be charged for smaller orders according to the applicable price list.

9. Payment

9.1.  Unless otherwise agreed in writing terms of payment are current month plus 30 days from date of invoice. Payment shall be made in the currency as stated in the invoice.

9.2.  USabcd reserves the right to charge the Buyer a fee when payment is effected by means of letter of credit or other instrument of payment than cash payment.

9.3.  Late payment shall bear a fee from the day on which payment became due. Unless otherwise stated in the order confirmation an interest rate shall be added per month of the payment outstanding.

10. Reservation of Title

10.1. The equipment, software, consumables, and spare parts and any parts thereof shall remain the property of USabcd until paid for in full to the extent that the applicable law permits such retention of property.

11. Liability for Defects - Warranty

11.1.  USabcd warrants that the equipment, software, consumables, and spare parts are delivered free from defects in materials and workmanship and will perform in accordance with the specifications under normal operating conditions for a period of six (6) months from the date of installation at end-user or for a period of twelve (12) months from the date of invoice, whichever period ends first.

11.2.  USabcd shall not be liable for defects caused by reasonable wear and tear and defects caused by neglect or improper use by the Buyer or any third party.

11.3. In no event shall USabcd be liable for any lost revenues, lost profits, incidental, indirect, consequential, special, or punitive damages.

11.4. In order to make a claim under this warranty, a Customer Non Conformance report (CNC) issued by USabcd shall be filled in and submitted to USabcd’s Customer Support by the Buyer immediately when the Buyer becomes aware of the warranty claim and in any event no later than 30 days after expiration of the applicable warranty period stated in Clause 11.1 above.

11.5. USabcd reserves the right to demand evidence of any information provided in the CNC.

11.6. Defective equipment, software, consumables, and spare parts for which the Buyer has made a claim under this warranty shall be kept by the Buyer for a period of three (3) months after the CNC has been submitted to USabcd.

11.7. USabcd reserves the right to request the alleged defective equipment, software, consumables, or spare parts to be returned to USabcd for examination in order to determine whether USabcd should accept the claim under this warranty. USabcd will pay the freight cost, if USabcd accepts the claim under the warranty. The Buyer shall enclose a copy of the CNC and the letter of the request from USabcd together with the returned defective equipment, software, consumables, or spare parts to USabcd.

11.8. In case USabcd requests return of malfunctioning electronic printed circuit boards (“PCB”), these must be protected against electrostatic discharge.

11.9. For warranty claims accepted by USabcd a credit note will be issued covering the invoiced price exclusive of freight and handling fee for defective equipment, software, consumables, or spare parts delivered by USabcd.

11.10. This warranty is exclusive and in lieu of all other express or implied warranties or conditions, including but not limited to:

11.10.a. implied warranties or conditions of description; or
11.10.b. implied warranties or conditions of satisfactory quality and fitness for a particular purpose. Provided however, that no exclusion of liability is made by USabcd in respect of warranty of title to the equipment, software, consumables, or spare parts implied by statute.

11.11. Subject to Clause 14, in no event shall USabcd’s liability to the Buyer arising out of or in connection with the sale, installation, use or servicing of the equipment, software, consumables, or spare parts be higher in amount than the purchase price of the equipment, software, consumables, or spare parts sold.

12. Return of Non-Defective Equipment, Software, Consumables, and Spare Parts

12.1. The Buyer has no right to cancel an order of equipment, software, consumables, or spare parts and return the equipment, software, consumables, or spare parts to USabcd without USabcd’s prior written approval.

13. Compliance with Legal Requirements and Product Standards

13.1.  The equipment of USabcd is in compliance with the legal requirements and product standards observed by USabcd. A list of legal requirements and product standards observed by USabcd is included in the safety instructions supplied by USabcd together with the equipment.

13.2.  USabcd shall not assume any liability for compliance of equipment, software, consumables, or spare parts with other legal requirements and product standards, which may apply in Buyer’s and/or End User’s country of residence.

14. Product Liability. Limitation of Liability

14.1. The Buyer shall indemnify and hold USabcd harmless to the extent that USabcd incurs liability towards any third party in respect of any damage for which USabcd is not liable towards the Buyer according to Clauses 14.2-14.5 below.

14.2. USabcd shall not be liable for loss or damage caused by the equipment, software, consumables, and/or spare parts:

14.2.a. To any (movable or immovable) property where the damage occurs while the equipment, software, consumables, or spare part is in the Buyer’s possession, or

14.2.b. To products manufactured by the Buyer or to products of which the Buyer’s products form part or for loss or damage to any property, where the damage is caused by these products because of properties in the equipment, software, consumables, or spare part.

14.3. USabcd shall under no circumstances be liable for any loss or damages arising out of or in connection with the sale, installation, use or servicing of the equipment, software, consumables, or spare part whether such losses or damages are suffered directly or indirectly or are immediate, incidental or consequential, arising from loss of production, loss of profit or anticipated profit, loss of business opportunity, or any other economic or consequential loss.

14.4. Notwithstanding anything to the contrary herein, USabcd shall be liable for bodily injury, if it is proved that such injury was caused by gross negligence on the part of USabcd or others for whom USabcd is liable. USabcd shall not be liable for bodily injury, if it is proved that the injury results from unsuitable or improper use or handling of the equipment, software, consumables, or spare parts, improper installation, improper adjustments, improper putting into operation, or improper maintenance, by the Buyer or third parties, as well as normal wear and tear.

14.5. To the extent allowed by applicable law USabcd’s indemnification under this section 14 cannot exceed EUR 7,500,000 per personal injury or property damage.

14.6. If a claim for loss or damage as described in this section 14 is raised by a third party against either party to the contract, the latter shall forthwith notify the other party thereof. In such circumstances, USabcd and the Buyer shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal which examines claims against either of them based on damage alleged to have been caused by the equipment, software, consumables, or spare parts. Any dispute regarding the liability as between USabcd and the Buyer shall, however, always be settled by arbitration in accordance with Clause 16.

15. Force Majeure

15.1.  The parties shall not be in default hereunder by reason of any failure or delay in the performance of any obligation under the contract where such failure or delay arises in circumstances which impede the performance of the contract or makes performance unreasonably onerous. Such circumstances include: Industrial disputes and any other circumstance beyond the control of the parties such as fire, war, mobilization or military call up of a comparable scope, requisition, seizure, currency restrictions, insurrection and civil commotion, shortage of transport, general shortage of materials, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstance as referred to in this Clause.

15.2.  Notwithstanding other provisions of these General Conditions, either party shall be entitled to terminate the contract by notice in writing to the other party if performance of the contract is delayed more than six (6) months by reason of any grounds described in Clause 15.1.

16. Disputes, Applicable Law – USabcd A/S, Denmark

16.1  All disputes arising out of the contract shall be governed by Danish law. Any dispute or claim arising out of or in connection with the contract (including the General Conditions) or the breach, termination or invalidity thereof shall be finally settled by arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration). The place of Arbitration shall be Copenhagen, Denmark. The language of the arbitration shall be English.

16.2  The arbitration award shall be final and binding upon both parties. Any award rendered in such arbitration may be entered in any court of competent jurisdiction, or application may be made to any such court for a judicial acceptance of the award and an order of enforcement, as the case may be.

16.3  Notwithstanding Clauses 16.1 and 16.2 the parties shall be entitled to prevent a breach of the obligations pursuant to the contract through the issue of an injunction before the ordinary courts of law or such remedy that might be an alternative to an injunction.