Subject to clauses 5 and 1.6, these General Terms („Terms„) will apply to Contracts between the customer („Customer„) and CNC Onsite A/S („CNC Onsite„) regarding: (i) provision of services („Services„); (ii) sale of products („Products„); and/or (iii) lease of equipment („Equipment„).
If the Terms are included in CNC Onsite’s offer in connection with a tender, CNC Onsite’s offer will be subject to the Terms.
Services, Products, and Equipment will individually, collectively, and in pairs be referred to as „Deliveries„.
The content and scope of the Deliveries will be described in the Contract.
Whether the Deliveries under the Contract comprise Services, Products, and/or lease of Equipment will be agreed in the Contract.
Clauses 1 through 16 apply to all Deliveries. Clause 17 applies solely to Services, clauses 18 through 20 apply solely to Products, and clause 21 applies solely to lease of Equipment.
The Terms take precedence over Customer’s standard terms, regardless of whether Customer has referred or may refer to it in orders, emails, letters, on websites, etc., unless those terms are expressly accepted by CNC Onsite in writing.
In case of conflict between the Terms and the remainder of the Contract, the Terms will prevail, unless the deviation from the Terms is expressly stated in the Contract as a deviation from the Terms.
Notices under the Terms must be in writing to be valid.
CNC Onsite’s instruction and training of Customer related to the Deliveries will only apply if: (i) agreed in the Contract; and (ii) Customer has requested the performance of the so agreed instruction and training within 12 months after the Contract has been concluded in accordance with clause 2.
Customer shall not rely on the information and data provided by CNC Onsite concerning the Deliveries unless the information and/or data is expressly referred to in the Contract.
OFFERS AND ORDERS
Upon Customer’s request, CNC Onsite will send an offer (hereunder a quotation) to Customer. If Customer has not accepted CNC Onsite’s offer in accordance with clause 2 within 30 days from the date of the offer/quotation, the offer will automatically expire.
The contract („Contract„) is concluded when CNC Onsite has provided a written acceptance of Customer’s order by an order confirmation or an invoice to Customer. References to Contracts include the Terms. The Contract will be comprised of (and references to Contract will include) (i) CNC Onsite’s order/quotation (including cover letter); (ii) Customer’s order; and (iii) CNC Onsite’s order confirmation.
If reference is made to the Terms in CNC Onsite’s offer and/or confirmation, e.g. by way of a link, the Terms will apply to the Contract, once the Contract has been concluded in accordance with clause 2.
If CNC Onsite’s order confirmation differs from Customer’s order, Customer shall notify CNC Onsite of this within 3 days after CNC Onsite has issued the order confirmation. Unless Customer gives that notice accordingly, CNC Onsite’s order confirmation will be deemed accepted by Customer.
The Contract constitutes the entire agreement between CNC Onsite and Customer concerning the Deliveries.
PRICES AND TERMS OF PAYMENT
The prices for the Deliveries: (i) are stated in the Contract; (ii) will be invoiced as stated in the Contract; and (iii) are exclusive of customs duties, VAT, and other taxes and charges. If the prices for the Deliveries are not stated in the Contract, Customer shall pay the prices invoiced by CNC Onsite for the documented Deliveries performed, based on the time and materials used by CNC Onsite for the Deliveries.
In case of exchange rate variations, increases in the prices of materials, consumables, wages, salaries, social costs, costs imposed by authorities, (environmental) taxes, transport costs, import or export taxes, or insurance premiums occurring after conclusion of the Contract in accordance with clause 2, CNC Onsite may adjust the prices accordingly.
An invoice falls due at the time stated in the Contract. Payment must be made in the currency stated in the Contract.
CNC Onsite may invoice the prices for the Deliveries as the Deliveries are performed, unless otherwise stated in the Contract. Each invoice will comprise the payment that proportionally corresponds to the value of Deliveries performed.
Customer shall not withhold an invoiced amount either in whole or in part nor set-off against an invoiced amount.
If Customer does not pay an invoice in accordance with clause 3, CNC Onsite may suspend its performance of the Deliveries until payment is made or terminate the Contract. CNC Onsite shall notify Customer of CNC Onsite’s choice.
Regardless of whether CNC Onsite’s choice under clause 6, CNC Onsite may claim compensation from Customer for losses and costs incurred by CNC Onsite due to delayed payment, hereunder default interest in accordance with Danish law.
CUSTOMER’S RISKS AND OBLIGATIONS
The risks and obligations which are not stated as CNC Onsite’s risks and obligations in the Contract will be Customer’s risks and obligations.
In addition to clause 1, Customer shall: (i) obtain and maintain the permissions and authorisations necessary for the performance of the Deliveries at the agreed location; and (ii) to the extent required by CNC Onsite, give CNC Onsite access to the location of the performance of the Deliveries.
CNC Onsite will not be liable for its breach of the Contract caused by Customer’s breach of this clause 4.
CANCELLATION
Customer shall not cancel the Contract in whole or in part, unless expressly agreed in writing with CNC Onsite.
VARIATIONS
„Variation‟ means a change, addition, deletion, or other modification to the Deliveries and/or the agreed dates of performance of the Deliveries, which is requested as a variation in accordance with this clause 6.
Customer may request a Variation until CNC Onsite has completed the Deliveries by issuing a Variation request stating the details of a proposed Variation.
If Customer issues a Variation request, CNC Onsite shall within 30 days submit an estimate to Customer. Customer may require CNC Onsite’s submission of an estimate before issuing a Variation request. The estimate must contain: (i) a description of the requested Variation; (ii) a schedule for the execution of the Variation, including the required resources; (iii) CNC Onsite’s proposed adjustment (if any) to the prices for the Deliveries affected by the requested Variation to effect the Variation; and (iv) the effect of the Variation on the agreed dates of performance of the Deliveries (if any).
After receipt of CNC Onsite’s estimate, Customer shall without undue delay: (i) approve the Variation by instructing CNC Onsite in writing to proceed with the Variation in accordance with the estimate; or (ii) reject the estimate by instructing CNC Onsite in writing not to proceed with the Variation. CNC Onsite shall not proceed with the Variation unless so instructed by Customer in accordance with sub-paragraph (i) of this clause 4.
CNC Onsite shall not delay, suspend, nor postpone the performance of the Contract whilst awaiting Customer’s response in accordance with clause 4.
Customer acknowledges and accepts that the estimate submitted by CNC Onsite in accordance with clause 3 is based on CNC Onsite’s estimated on the date of submission, thus, CNC Onsite may update the estimate on the date on which Customer instructs CNC Onsite to proceed with the Variation in accordance with sub-paragraph (i) of clause 6.4 to cater for changes in the pricing and/or consequences in timing of the Variation.
The Contract applies also to Variations which have been approved by Customer in accordance with clause 4.
DATE OF DELIVERY
If a final deadline for CNC Onsite’s completion of the Deliveries has been agreed in the Contract, CNC Onsite shall complete the Deliveries within that deadline. If that deadline is not met and this is caused by CNC Onsite’s negligence, CNC Onsite: (i) shall complete the Deliveries as soon as possible; and (ii) will be liable to Customer for the costs and losses incurred by Customer. CNC Onsite’s liability under this clause 1 will be subject to clause 10 and limited to the lower of: (i) 7.5 % of the total amount paid by Customer under the Contract; and (ii) 100,000.00 EUR.
PRODUCT LIABILITY
Subject to clause 10, CNC Onsite will be liable for damage to persons and/or property cause by the Deliveries, if the damage is caused by the negligence of CNC Onsite or anyone for whom CNC Onsite is responsible.
If a third party raises a claim against one of the parties as a result of damage to persons and/or property caused by the Deliveries, that party shall immediately notify the other party. If a notification is not made accordingly, the party forfeits the right to make a claim against the other party in relation to the third party’s claim.
If a third party makes a claim against CNC Onsite for damage to persons and/or property caused by the Deliveries, Customer shall indemnify CNC Onsite against the costs, losses, and damages incurred by CNC Onsite as a result of the claim to the extent CNC Onsite would not have been liable for those costs, losses, and damages had the claim been made by Customer against CNC Onsite under the Contract.
FORCE MAJEURE
Events or circumstances beyond a party’s control, e.g. fire, war, epidemics, pandemics, quarantine restrictions, restrictions imposed by governmental or public authorities, adverse weather, confiscation, insurrection and civil commotion, cyberattacks, lack of transportation, power restrictions and defects in or delay of deliveries from sub-suppliers which hinders, prevents, delays, or otherwise affects that party’s performance of its obligations under the Contract or makes the performance unreasonably burdensome, will exempt that party from liability as long as the events or circumstances endure.
The party claiming exemption from liability under clause 1, shall notify the other party without undue delay on the occurrence and cessation of the events or circumstances. If Customer claims exemption from liability under clause 9.1, Customer shall reimburse CNC Onsite the costs incurred by CNC Onsite for securing and protecting the Deliveries, if these comprise Products. Customer shall also reimburse CNC Onsite the costs incurred by CNC Onsite for personnel, sub-suppliers, and equipment that on Customer’s request are kept ready for resumption of performance of the Deliveries.
Notwithstanding the other provisions of the Terms, each party may terminate the Contract by giving notice to the other party if the performance of the Contract has been delayed for more than 3 consecutive months as a result of an exemption from liability in accordance with this clause 9.
LIMITATION OF LIABILITY
CNC Onsite will not be liable for: (i) costs for logistics, vessels, cranes, and lifts; nor (ii) consequential losses, loss of profit, loss of production, or other indirect or consequential losses incurred by Customer.
CNC Onsite’s liability under the Contract is limited to 15,000.00 EUR, however, this limitation will not apply to liability of CNC Onsite which is caused by gross negligence or intent.
CONFIDENTIALITY AND IP
„Confidential Information‟ means commercial, financial, scientific, and technical data, know-how and other information, including information related to pricing and participation in tenders, disclosed by or on behalf of a party to the other party, including the contents of the Contract, irrespective of whether the information is: (i) disclosed orally, visually, or in writing (including electronic transfer and by one or another media); (ii) observed during visits to the facilities of the disclosing party; and/or (iii) identified or stamped as „confidential‟ or labelled with a comparable label; however, excluding information which: (a) at the time of its disclosure was already in the possession of the receiving party, provided that possession is not a result of a disclosure from a third party that was under an obligation to the disclosing party to keep the information confidential; (b) after the time of its disclosure is obtained by the receiving party from a third party that was not under an obligation to the disclosing party to keep the information confidential; (c) after the time of its disclosure has been independently developed by one or more individuals for or on behalf of the receiving party who have not had access to the information from the disclosing party; and/or (d) has become publicly available other than as a result of breach of the Contract.
Subject to clause 3, the receiving party shall: (i) not use or facilitate use of Confidential Information for another purpose than the cooperation under the Agreement; and (ii) not disclose Confidential Information to a third party, other than to: (a) its relevant employees, officers, and affiliates; and (b) its consultants, including external lawyers.
Sub-paragraph (ii) of clause 1 will not apply to Confidential Information which the receiving party is legally required to disclose in accordance with statutory mandatory legislation or by order of a public or governmental authority or a competent court, provided that the receiving party: (i) without undue delay after becoming aware of the requirement informs the disclosing party of the requirement in writing; and (ii) only discloses the Confidential Information which it is legally required to disclose.
„IP‟ means legally recognised protectable intellectual property rights e.g. patents, invention rights, utility models, copyrights, corporate names, trade names, trademarks, industrial design rights, know-how, trade secrets, and applications for one or more of the foregoing.
CNC Onsite owns and maintains ownership to: (i) IP owned by CNC Onsite at the time the Contract is concluded in accordance with clause 2; and (ii) IP developed by CNC Onsite independently of the Contract.
If Customer is enjoined from using the Deliveries due to the Deliveries infringing third-party’s IP, CNC Onsite shall, at CNC Onsite’s cost, without undue delay implement a work-around solution. The work-around solution must, at CNC Onsite’s discretion, be CNC Onsite: (i) obtaining the right for Customer to use the Deliveries; (ii) (if the Deliveries comprise Products) substituting the Deliveries with functionally equivalent products that do not infringe the IP; or (iii) modifying the Deliveries so that the Deliveries no longer infringe the IP.
IP developed in connection with the Contract will be owned: (i) by Customer, if the IP is based on IP disclosed to CNC Onsite by Customer; or (ii) by CNC Onsite, if the IP is not encompassed by sub-paragraph (i) of this clause 7.
TRANSFER OF RIGHTS
CNC Onsite may transfer its rights and obligations under the Contract to a third party. Customer may transfer its rights under the Contract to a third party, however Customer may only transfer its obligations under the Contract to a third party after CNC Onsite’s express and written acceptance.
VALIDITY AND AMENDMENTS
If a part of the Contract is deemed wholly or partially invalid, it does not affect the validity of the other parts of the Contract.
No amendment to the Contract will be valid unless made in writing and signed by the parties. This also applies to an amendment to this clause 2.
SUBCONTRACTORS
CNC Onsite may freely subcontract its obligations under the Contract. However, if CNC Onsite subcontracts one or more of its obligations under the Contract, CNC Onsite will be liable for the subcontractor’s performance in the same way and to the same extent as for its own performance.
TERMINATION
Each party may terminate the Contract if the other party has materially breached the Contract and has not remedied the breach within 60 days after the first party’s written notice of the breach.
GOVERNING LAW AND JURISDICTION
Disputes related to the Contract, will be governed by Danish law, however excluding the Danish rules on private international law as well as the United Nations Convention on Contracts for the International Sale of Products (CISG).
Disputes that may arise in connection with the Contract, including disputes concerning the existence, validity, or termination of the Contract, must be settled by arbitration at the Danish Institute of Arbitration in Copenhagen in accordance with the rules adopted by the Danish Institute of Arbitration in force at the commencement of the arbitration proceedings.
PERFORMANCE OF SERVICES
CNC Onsite may structure, prioritise, and perform the Services as CNC Onsite reasonably considers prudent and expedient, hereunder by using the resources and materials as CNC Onsite prefers. However, in performing the Services: (i) CNC Onsite will not make commitments or enter contracts on behalf of Customer; (ii) CNC Onsite shall perform the Services in accordance with the Contract and the laws which are mandatory and apply to the Services, and Customer requirements stated in the Contract; (iii) CNC Onsite shall use materials of good and customary quality and properties; (iv) CNC Onsite shall use competent resources who are qualified, trained, and experienced in performing the Services; and (v) if CNC Onsite finds that performance of the Services requires the involvement of third-parties (e.g. subcontractors), CNC Onsite shall ensure that these third-parties comply with this clause 1.
The materials used by CNC Onsite in performance of the Service will be considered part of the Services and will not be covered by clauses 18 through 20.
If Customer discovers or ought to have discovered that the Services have not been performed in accordance with clause 1, Customer shall immediately give notice to CNC Onsite. If Customer does not notify CNC Onsite in due time, Customer’s right to claim remedial action lapses. In Customer’s notice, Customer shall state in which respect the Services have not been performed in accordance with clause 17.1.
If Customer wrongfully notifies CNC Onsite the Services have not been performed in accordance with clause 1, CNC Onsite may invoice the costs incurred by CNC Onsite as a result of Customer’s wrongful notice.
If it is determined that CNC Onsite has not performed the Services in accordance with clause 1 and: (i) this is not due to Customer or a third part for whom Customer is responsible; and (ii) Customer has notified CNC Onsite of this within 12 months after CNC Onsite has completed the Services, then CNC Onsite shall within a reasonable time remedy the Services to the extent required for the Services to be performed in accordance with clause 17.1.
This clause 17 comprises the full and exclusive obligations of CNC Onsite with respect to the performance of the Services.
DELIVERY AND TRANSFER OF TITLE AND RISK
Delivery and transfer of risk for the Products will take place Ex Works (Incoterms 2020) a location designated by CNC Onsite. Transfer of title to the Products takes place when Customer has paid the total amount payable by Customer under the Contract.
INSPECTION AND NOTICE OF DEFECTS
Customer shall inspect the Products immediately after delivery.
If Customer discovers or ought to have discovered a Defect, Customer shall immediately give notice to CNC Onsite of the Defect. If Customer does not notify CNC Onsite in due time, Customer’s right to claim remedy of the Defect lapses. In Customer’s notice, Customer shall state the nature of the Defect.
If Customer wrongfully notifies CNC Onsite of an alleged Defect, CNC Onsite may invoice the costs incurred by CNC Onsite due to this notice.
DEFECTS
CNC Onsite shall deliver Products which: (i) are free from defects in material, design, and workmanship; and (ii) comply with the specifications agreed in the Contract. If a Product does not comply with this clause 1, the Product will be considered a „Defect„. Customer shall ensure that the Products are suitable for Customer’s needs and intended use. CNC Onsite will not be liable for this.
CNC Onsite will be liable for Defects, however only if: (i) the Products have not been used differently than what is agreed or customary for the type of Products in question; (ii) the Products have been handled, stored, maintained and used in accordance with the usual practice of the type of Products in question; (iii) the Products have not been repaired or modified by others than CNC Onsite; (iv) the Defect is not caused by Customer or a third party for whom Customer is responsible; (v) the Defect has not been notified in accordance with clause 19; and (vi) the Defect has been notified within 24 months after delivery of the Product, unless a longer period has been agreed in the Contract.
In case of a Defect for which CNC Onsite is liable in accordance with clause 2, CNC Onsite shall remedy the Defect by repairing the Product or delivering a substitute Product. CNC Onsite may make several remedy attempts or deliveries of substitute Products.
CNC Onsite will be liable for Defects in the parts of the Product that CNC Onsite has repaired, or for the substitute Product delivered under clause 3, in accordance with the terms of the Contract applying to the original Product. However, CNC Onsite will in any case not be liable for Defects in a Product beyond 24 months after delivery of the Product, unless a longer period has been agreed in the Contract.
If CNC Onsite fails to comply with clause 3 within a reasonable time, Customer may give CNC Onsite a notice requiring CNC Onsite to do so before the expiry of a final deadline, which must be at least 30 days from Customer’s notice. If CNC Onsite fails to perform its obligations before the expiry of this deadline, Customer may claim a proportionate reduction of the price paid for the Product suffering from the Defect.
LEASE OF EQUIPMENT
CNC Onsite shall deliver the Equipment to Customer FCA (Incoterms 2020) at the place and on the date stated in the Contract.
Customer shall not use the Equipment for other purpose than the purpose stated in the Contract.
Customer shall lease the Equipment for the lease period stated in the Contract („Lease Period„).
During the Lease Period, Customer shall bear the cost for handling, using, storing, transporting, and maintaining the Equipment in accordance with the CNC Onsite’s requirements provided in writing to Customer.
Customer shall at its own cost and risk return the Equipment to CNC Onsite by delivering it DDP (Incoterms 2020) at the same place as it was delivered by CNC Onsite to Customer in accordance with clause 1. The return must be completed no later than at the expiry of the Lease Period.
Customer will bear the risk for the Equipment during the Lease Period.
During the Lease Period, Customer shall handle, use, store, transport, and maintain the Equipment in accordance with the CNC Onsite’s requirements provided in writing to Customer.
Customer will be liable for the costs, losses, and damages incurred by CNC Onsite due to damage to or loss of the Equipment during the Lease Period.
CNC Onsite will be liable to Customer for damage to property or persons caused by the Equipment, provided the damage is due to CNC Onsite’s negligence.
If a defect in the Equipment occurs during the Lease Period due to CNC Onsite’s negligence, CNC Onsite shall remedy the defect at its own cost, provided Customer has notified CNC Onsite in writing of the defect without undue delay after the occurrence of the defect. If a defect in the Equipment occurs during the Lease Period, and this is not due to CNC Onsite’s negligence, CNC Onsite shall remedy the defect at Customer’s cost.
