General Conditions of Sale and Delivery
1. APPLICATION AND DELIVERY
All sales and deliveries from A/S ScanCommerse – hereinafter referred to as SC – shall happen on the basis of the following Conditions of Sale and Delivery unless otherwise agreed by both parties in writing. Any deviation from these Conditions of Sale and Delivery, which is noted in the customer’s order or similar, is not a part of the contractual basis between SC and the buyer, unless written agreement from SC exists. Where other contractual material exist between SC and the customer, the other contractual material takes precedence over these Conditions of Sale and Delivery.
2. SCOPE OF DELIVERY
SC has the ownership of the software. The customer shall be assigned a licence in the form of a nonexclusive, indefinite right of use of the software. The customer is obligated to respect SC’s and any subcontractors’ licence terms and property- and copyright of this program in force at any time. The customer also agrees to follow Danish law’s rules in force at any time for handling the program, which is protected by property rights or copyright. Particularly regarding subscriptions it is assumed that the customer is of legal age to subscribe with SC.
2.a Documentation and Guidance
Product descriptions and user manuals for computer equipment and computer software can be included in the delivery in the scope in which is has been produced. If it is a prerequisite for the customer that it is available, it must be brought to SC’s attention before the submission of tender. It is the customer’s own responsibility that the material stored on SC’s servers follow Danish Law, including ethical rules.
2.b Special conditions regarding subscriptions
It is the customer’s own responsibility that the installed/stored software on the servers is is fully licensed and follows the manufacturer’s licensing, unless otherwise agreed by both parties in writing. For certain server subscriptions it is SC who is in charge of the licensing of all or parts of the installed/stored software. In these cases the customer will be made aware of this at the time of contracting with SC. Upon termination of the server park subscription it is the customer’s own responsibility to uninstall any software rented, which is licensed through SC, before the server physically leaves SC’s locations. Such software must not be used outside of SC’s locations and in the opposite case, the customer will be held liable to SC and/or the manufacturer. In the event of any lawsuits/demands from the manufacturer against SC equivalent compensation may be claimed from the customer.
2.c Special conditions regarding hosted Navision
When hosting Navision, where the customer rents the license from A/S ScanCommerce, the customer must notify A/S ScanCommerce of all object, system- or table changes to the system, which might affect the license fee. This includes changes made by any third party suppliers. If the customer has purchased their own dedicated server or uses their own purchased licenses, the duty to disclose this information is waived.
2.d Special Conditions regarding backup
Backup must be agreed upon separately with SC. Unless otherwise agreed servers will be backed up. It is the customer’s responsibility to get a detailed written agreement about the backup procedure in the event of special requirement for backup times, and so on.
2.e Particularly regarding disc space and traffic
The intent with SC’s web hotels is not to function as an external hard drive or FTP archive to store data files, such as zip, mp3, mpeg, avi, jpg and similar, but to appear as a display-/shop space for business people and private. For this reason having large file archives available for download is not allowed. SC generally allow any form of information, which is not in violation of provisions in Danish law, with the exception of pornographic or controversial material, which must not under any circumstances be placed on SC’s web servers. SC has the right to define the term ’controversial material’ as they see fit. For solutions with a use of more than 5 GB per month Traffic fees are calculated for the previous 6 months, or by individual agreement. The average usage over a 6 month period is used as a starting point. Used disc space over the agreed use is invoiced based on use. It is calculated based on the maximally used spaced in the previous 6 months. If no specific usage has been agreed upon in the contract, the disc space assigned the particular service in ScanCommerce’s standard contract is used as a basis.
2.f Particularly regarding browser support
SC’s standard software is as a basis only supported by the newest versions of the browsers Microsoft Internet Explorer and Mozilla Firefox. The support is only valid at the time of implementation of the the standard software. Customer specific customisations, including but not limited to graphical designs or setup, customisations of the SC supplied standard software may cause unintended effects in other browser types. Unless otherwise agreed in writing all customer specific tasks, including task estimates, are only supported by the newest versions of the browsers Microsoft Internet Explorer and Mozilla Firefox at the time of implementation for the customer specific task.
2.g Special conditions regarding support
Software support must be agreed on separately with SC. If the customer wants this service, it is the customer’s responsibility to get a detailed written agreement regarding support.
3. PRICE AND PAYMENT
3.a Special conditions regarding shop system and payment module
Any use of SC’s shop system or payment module happens on the at any time current terms in regards to the general business terms, which the subscriber has accepted by signing a subscription agreement with SC.
3.b Special conditions regarding hourly work
The following will apply if it is not regarding fixed price cases. SC’s fee is determined based on the time we have spent on the case and the nature of the task. In special cases we reserve the right to relate the price to the responsibility connected with solving the task combined with the time used.
The invoice must contain sufficient descriptions of the work for which payment is demanded. We are happy to provide an estimate of the expected costs connected with solving the task before we start a task for a client, and we are willing to follow up on this estimate and notify the client if it does not seem like the estimate was correct. If no offer can be made, we will state which main elements are included in the fee to be paid.
SC is entitled to invoice for payment for software when physical delivery has happened. This means that any connection fees and operating fees will be billed from the creation date. Invoices must be paid 8 days after the date of invoice or by individual agreement.
In the event of any delayed payments SC is entitled to charge an interest rate from the due date in accordance with the rate specified in the Danish Interest Act (Renteloven). SC is not required to send a separate interest claim to gain this right. If the due date has passed, interest claim has been given and an additional 10 days has passed without payment, SC may detain all or part of any further deliveries, or partially or completely terminate the contract by written notice to the customer. All prices are excl. value added tax (VAT) and other public taxes, which may be imposed on the purchase. It is the customer’s responsibility to keep SC informed of the residence as well as any additional information used in billing, updating or general communication.
3.c.1 Particularly regarding subscription
Subscriptions are billed semi-annually in advance and can at any time be terminated in writing at a month’s notice prior to the expiry of the subscription period, after which SC will send a confirmation. The subscription runs from the time of signing and 6 months forwards, after which it will automatically be extended by an additional subscription period every 6 months. Subscriptions ordered by mistake will not be refunded.
The hosting price in force at any time is adjusted annually according to the index by 3 % to keep up with the market index. The indexation will automatically be added to the agreement one year after the signing of the contract. SC reserves the right to continually modify this rate according to the development in the net price index (NPI).
4. DELIVERY TIME AND PASSING OF RISK
Unless otherwise agreed, delivery is considered completed when the software is implemented or handed over from SC. SC assumes no responsibility for installation, implementation, etc. unless otherwise agreed. In the cases where SC, in agreement with the customer, must complete the installation of the products, the delivery time is the day where the products are physically handed over to the customer at the agreed upon place of delivery or installed on the customer’s web hosting service. The risk of the products passes to the customer at the time of delivery.
5. REMEDY AND COMPLAINT
SC endeavors to have the systems available 24 hours a day, year round. SC is entitled to suspend the service when maintenance or other technical conditions make it necessary. In accordance with the terms below and the speed demanded by the situation, SC is required to remedy any errors in the products which makes them unable to live up to the specifications in the product description at their own expense.
SC’s responsibility does not include:
- Errors caused by the customer’s use of the products in connection with other attachments, which directly or indirectly affect the function of the products.
- Errors caused by changes or alterations to the products, which are not done in compliance with SC’s instructions.
- Errors caused by the customer’s lack of training or use of the products in any other way than detailed in the provided documentation, or by neglect from the customer or the customer’s staff or third parties, or by other circumstances beyond SC’s control (force majeure).
- Normal operation maintenance, such as adjustment, or if the acquisition of extra functionality is required.
- Program errors in the subcontractor’s products, which are not included in the subcontractor’s warranty provisions. If the customer wishes to invoke deficiencies with regards to a subcontractor’s product, SC must be notified, who will then pass the defect description on to the subcontractor.
- Restrictions in the functionalities or development of the system, which is caused by the customer’s insertion of software, etc. which influence what was delivered by SC.
To invoke errors or defects in the products, the customer must report the error or defect immediately after it has been detected. The customer must inform, and on request show, how the error or defect manifests itself. SC is only responsible for errors which are identified within 2 months of the delivery time. Errors reported later than 2 months after implementation will be corrected and billed per time spent at the hourly rate agreed upon. Thus is the customer’s responsibility to test the software and report errors and defects within 2 months after implementation. The warranty period for equipment and software from a subcontractor will always follow the subcontractor’s warranty period.
When remedying errors the affected parts must be made available to SC in the time required. These actions must be carried out in SC’s normal working hours. On request, representatives from the customer must be available during SC’s work.
If the customer has reported errors, and it turns out there are no errors, the customer must compensate the costs SC may have had in connection with it. The compensation is determined based on SC’s hourly rates in force at any time.
6. PARTICULARLY REGARDING SOFTWARE
6.a. Special conditions
If special licensing terms/conditions apply to the supplied software, they take precedence over these conditions. This applies whether the license terms come from third parties or are developed by SC.
6.b. Right of use
The customer acquires a non-exclusive, non-transferable right of use for the agreed upon number of users and/or the agreed upon number of licenses for the software supplied with any associated modules and written documentation. The customer has the right to install the supplied MS Dynamics NAV eSeller kit/software on the hardware for which a license has been granted. Webshop software and related products runs on servers at SC. The code for the webshop software and related software is not supplied, and access is not granted beyond what can be accessed from the administration in the software.
6.c. Copying software
The customer is not authorised to copy the software or parts of it except the copying necessary during installation. However, the customer is entitled to make security copies of the supplies software for backup or archival purposes if it is necessary for the use of the supplied. Copies made for backup or archival purposes are also subject to these license terms.
The customer is not authorised to make any changes to the software, including unauthorised to conduct or let reverse engineering be conducted or decompilation of the software beyond what might be allowed under mandatory law, which applies to this legal matter. In the event the customer or third party makes modifications or changes to the software SC’s obligations under these terms lapse without notice, and SC disclaim all responsibility for the consequences of such modifications or changes. SC’s remedies for breach of contract remain unchanged.
The customer not authorised to sell, rent, lend, permit the use of or otherwise transfer or hand over the license rights of the software to third parties. The software must not be used in connection with facility management, outsourcing, hosting or similar without special agreement with SC about this.
6.f. Intellectual property rights
SC has the copyright and any other right to the supplied software or is authorised to sublicense this on behalf of third parties.The customer must respect SC/third party’s rights, and the customer is responsible for any violation of these rights, including unauthorized distribution of the software to third parties.The customer is not authorised to break or modify any security codes, just as the customer is unauthorised to change or remove statements in the software or on the media on which the software is delivered regarding property rights, trademarks, etc. The customer is obligated to ensure that the software and documentation is kept inaccessible to third parties and that the software and documentation does not in any other come into the possession of third parties.
6.g. Remedying original errors and defect in the software
The customer is obligated to examine and test the software immediately after the delivery. Until 30 days after the delivery of the software, SC is obligated to supply a new copy of the software, provided a medium (e.g. a CD-ROM) is not readable. The software can – like any other software – contain inconveniences or smaller defects. Such smaller defects and inconveniences does not entitle the customer to remedy or other remedies for breach of contract. SC will endeavor to correct all defects and inconveniences in later versions of the software.
If the customer documents in writing that there is an original error in the software, which affects the functionality of the software in full or hinders the execution of the software, SC is obliged to, by their choice, either deliver a new version of the software without the error cost free, correct the error cost free, or terminate the contract completely or partially, or reimburse the fee received for the software in return for the customer’s versions and copies of the software, manuals, associated documentation, etc. In the event of error correction, assignment of procedures or methods of use(“work arounds”) are equated, after which the error has no significant impact on the customer’s use of the software. The customer is debarred from bringing further claims or defect remedies to SC. The software is licensed as-is and with no other warranties, supplementary performances, or remedies than the above-mentioned. Thus SC provides no warranty that the operation or execution of the software will be without interruptions or free of errors, or that software errors can and will be corrected.
6.h. Violation of third party rights
SC is to the customer responsible for making sure the software does not violate third party intellectual property rights. In the event legal action is taken against the customer, under which such an offence exist, the customer is obliged to notify SC about this immediately. After which SC or the third party from whom SC has licensed the software will take over the case and the costs related to the case, and SC has irrevocable authority to go through trial or reach a settlement concerning the alleged violations. If a verdict is given under the concerned third party’s claim, SC is authorised to, by their own choice, either obtain the rights for the customer to continue using the software, or stop the violation by changing or replacing the software with another program, which essentially has the same functionality as the software, or terminate the contract effective immediately in return for reimbursing the fees paid. In which case the customer can make no further claims to SC.
SC is authorised to use the supplied as a reference, possibly including a short description of the project and the project process.
7. DURATION OF THE CONTRACT, TERMINATION AND CANCELLATION
The contract runs without any time limit from the commencement date.
7.a Particularly regarding subscription
Subscriptions are taken out in 6 month periods. The customer can terminate the subscription within the 6 month period med a 30 day notice, but the remaining subscription period will not be reimbursed. If the customer does not terminate the contract within a 6 month period, the contract will run for a new 6 month period. SC can at any time terminate a subscription with 30 days written notice. If SC terminates a subscription, payment for the remaining subscription period will be reimbursed. Inconvenience of other subscribers and material breach of the contractual relationship will be considered misuse. SC has the right to define if ’misuse’ has occurred as they see fit. In the event of misuse SC can terminate and close a subscription without notice.
7. b Particularly regarding MS Dynamics NAV add on products
In the case of separate termination of add on products additional costs may occur in connection with the read out of deactivation of the add on product in question. All costs related to this will be billed at the hourly rates in force at any time and must be defrayed by the customer at termination of the add on product.
8. LIMITATION OF LIABLITY
SC’s liability is in any event limited to the total payments for computer equipment and computer programmes. SC is in no event responsible for the customer’s indirect losses, including but not limited to operating losses, lost profit, lost data and the reestablishment of these, damages caused by computer virus, loss of goodwill, or claims for damages or penalties which the customer might incur from third parties. Particularly SC takes no responsibility for any potential product liability claims beyond what is demanded by the Danish product liability law. Any non-statutory product liability developed in accordance with Danish case law about damages is thus expressly waived.
In the extent SC may incur product liability from a third party, the customer is obligated to compensate SC in the same extent to which SC’s responsibility is limited by these conditions.
9. FORCE MAJEURE
The following circumstances will lead to exemption of liability for SC when they occur after the agreement has been made and prevent its completion: labor dispute and any other circumstances beyond SC’s control, such as fire, war, mobilization or unforeseen military drafts of similar extent, requisitions, seizures, currency restrictions, rebellions and riots, lack of transportation, natural disasters, normal product shortage, rejection of major works, and defects or delays from supplies, which is caused by some of the circumstances mentioned in this section. SC is entitled to terminate the contract by written notification to the buyer when its completion within reasonable time is made impossible due to one or more of the circumstances mentioned above. The customer only has the right to terminate the contract due to delays, as mentioned above, if the delay is longer than 3 months.
10. RESERVATION OF OWNERSHIP
Where the customer gains the ownership of the sold including accessories, it has been sold with reservation of ownership and is SC’s property, until the customer has paid the full purchase price with the addition of interest and costs, including any expenses regarding the sold which may have been incurred by SC on the customer’s behalf. Until ownership has been passed to the customer, the customer commits itself to not pledge, rent out, lend or in other ways dispose of the sold without SC’s consent. The ownership of the program is not passed to the customer at any time.
11. JURISDICTION AND CHOICE OF LAW
Any disputes between the parties must be finally settled by arbitration according to the rules of procedure at Danish Arbitration (Det Danske Voldgiftsinstitut) and the decision must be made according to Danish law.
In the event of any difference in interpretation between a translation of these General Conditions and the Danish source text of these General Conditions, the Danish source text takes precedence.