for the Supply and Erection of Machinery and other Mechanical, Electrical and Electronic Equipment in Denmark, Finland, Norway and Sweden.
Issued in 2019 by DI, Denmark, Teknologiateollisuus - Teknologiindustrin, Finland, Norsk Industri, Norway and Teknikföretagen, Sweden.
1. These General Conditions shall apply when the parties agree in writing or otherwise thereto. Any modifications of or deviations from the conditions shall not apply unless agreed in writing.
2. In these General Conditions the following terms shall have the meaning herein assigned to them:
Contract: The written agreement between the parties concerning performance of the Works, and all appendices, including amendments and additions to the said documents agreed in writing.
Plant: All machinery, apparatus, Software, materials, documentation and other articles to be supplied by the Contractor under the Contract.
Works: The Plant and the result of the work to be performed by the Contractor under the Contract.
If the Works according to the Contract shall be taken over by separate sections intended to be used independently from each other, these General Conditions shall apply to each section separately. The term “Works” shall then refer to the section in question.
Site: The place where the Plant are to be erected, including adjacent areas necessary for transport, unloading and storage of the Plant and necessary erection equipment.
Contract Price: The sum, excluding value added tax, to be paid for the Works.
If erection is paid for on a time basis and is not yet completed, the Contract Price for the purposes of Clauses 23, 27, 49 and 50 shall be the price of the Plant with the addition of 10 % or such other percentage as the parties have agreed.
Written Notice: All documents signed by one of the parties and received by the other party, and notices received by the other party by letter, fax, electronic mail or other means of communication agreed by the parties. The contents of minutes from a meeting signed or approved by both parties shall also constitute a Written Notice.
Software: The computer software which is included in the
Works and which consists of
- contractor Software, computer software to which the Contractor holds the rights, and
- sublicensed Software, computer software to which a third party holds the rights and for which the Contractor transfers the right of use with the permission of the right holder.
3. Data contained in marketing material, price lists and other product information are binding only to the extent that they are by reference expressly included in the Contract.
Documentation and Information
- All documentation regarding the Works submitted by one party to the other, prior or subsequent to the formation of the Contract, shall remain the property of the submitting party.
Documentation or information received by one party may not, without the consent of the other party, be copied or used for any other purpose than that for which it was submitted.
- The Contractor shall, not later than at taking over of the Works, free of charge provide the Purchaser with one set, or the larger number that has been agreed, of such documentation, which is sufficiently detailed to enable the Purchaser to carry out commissioning, operation and maintenance, including running repairs, of the Works. The Contractor shall not, however, be obliged to supply documentation for manufacturing of the Plant or spare parts.
6. Neither party shall, without the consent of the other, be entitled to disclose to any third party technical or commercial information which either party, at the formation of the Contract or later, has stated to be confidential. This does not apply to the extent that the disclosure is necessary to enable a party to fulfil its obligations under the Contract or for operation and maintenance of the Works.
Each party is obliged to prevent that such confidential information is disclosed to or used to a greater extent than permitted by the first paragraph of this Clause by its employees, consultants, subcontractors and other contractors or others who through that party have or may obtain access to such information.
- Unless otherwise agreed, the Purchaser acquires a non-exclusive, perpetual right to use the Contractor’s software in the use of the Works. The Purchaser may transfer this right of use to subsequent owners of the Works. Unless otherwise agreed, the Contractor retains the rights to the Contractor’s software even when such software has been produced specially for the Purchaser. The Purchaser may at his own responsibility make such changes in the Contractor’s software that are consistent with the general purpose for which the Works is intended.
Subject to the limitations that may be agreed between the intellectual property rights holder and the Contractor, the Purchaser acquires a non-exclusive, perpetual right to use sublicensed software in the use of the Works and to transfer this right to subsequent owners of the Works. The Contractor shall, no later than when the contract is entered into, inform the Purchaser in writing of any such limitations. The Purchaser may make changes in sublicensed programs only if specially agreed.
- Unless otherwise agreed, the Contractor is not obliged to provide the Purchaser with the source code to the computer software. Nor shall the Contractor, unless otherwise agreed, be obliged to provide the Purchaser with updated versions of the computer software.
Scope of the Works. Laws and Regulations
- The scope of the Works shall be as set out in the Contract.
The Works shall be in accordance with the laws and other official regulations which were in force at the date of the tender in the country where the Site is located. The Purchaser shall, at the Contractor’s request, provide information on such laws and regulations which apply to the Works.
- The Contractor shall perform such variations as are required due to amendments in laws and other official regulations which apply to the Works, or in their generally accepted interpretation, where such change occurs after the date of the tender and before taking over of the Works. The provisions of Clauses 37 and 38 shall apply to such variations.
11. The Purchaser shall be responsible to the Contractor for ensuring that erection is carried out under conditions which comply with the applicable laws and regulations for working conditions at the Site. The Purchaser shall inform the Contractor by Written Notice of the safety regulations to be observed by personnel on the Site.
The Purchaser shall further at his own expense, on or near the Site, provide satisfactory facilities for the erection personnel for changing of clothes, washing and eating. The Purchaser shall also ensure that the Contractor’s personnel have access to board and lodging in the vicinity of the Site in accordance with the applicable collective labour agreements, regulations or as specified in the Contract. The expenses for board and lodging are regulated pursuant to Clauses 24.2 and 25.
- The Contractor shall at the time agreed or, if no time has been agreed, in good time before erection starts, provide to the Purchaser drawings and descriptions showing how the Plant is to be erected. The Contractor shall at the same time provide all information necessary for preparing proper foundations and beddings required for the Works, for enabling unhindered transport of the Plant and necessary erection equipment to and on the Site and for preparing all necessary connections to the Plant.
The Contractor shall bear any expense incurred by reason of errors or omissions, which appear before taking over, in the drawings, descriptions or information mentioned in the preceding paragraph. If such errors or omissions appear after taking over, the provision of Clauses 54 – 67 shall apply.
- The Contractor shall inform the Purchaser by Written Notice when the Plant will be ready for erection in sufficient time to enable the Purchaser to carry out in time his obligations under Clauses 14 and 15, which are necessary for carrying out the erection.
- The Purchaser shall carry out the necessary preparatory work in accordance with the drawings, descriptions and information referred to in Clause 12. If the parties have failed to agree on a specified date when the Purchaser’s work shall be completed, it shall be completed so that foundations and beddings are ready to bear the Plant at the agreed time, however no later than one week before erection is due to commence. The Purchaser shall inform the Contractor by Written Notice when the preparatory work has been completed.
- The Purchaser shall before erection is due to commence ensure that water and power, including compressed air and electric power, is available to the Contractor on the Site to the extent necessary or as specified in the Contract. These facilities shall be provided without cost to the Contractor. Nor shall the Contractor be obliged to pay for the use of such water and power.
The Purchaser shall also on or near the Site place at the Contractor’s disposal lockable or otherwise secured premises or storage facilities, which are suitable for protecting the Plant and the Contractor’s tools and equipment against theft and damage.
Testing of the Plant in Connection with Manufacture.
- If the Contract provides for Plant to be tested in connection with its manufacture, such test shall, unless otherwise agreed, be carried out where the Plant is manufactured. If the technical requirements for the test have not been agreed, it shall be carried out in accordance with general practice in the industry concerned in the country of manufacture.
- The Contractor shall inform the Purchaser by Written Notice of such test as referred to in Clause 16 in sufficient time to permit the Purchaser to be present at the test. If the Purchaser has received such notice, the test may be carried out in the Purchaser’s absence.
The Contractor shall record the test. The test report shall be sent to the Purchaser. Unless the Purchaser proves otherwise, the test report shall be considered to correctly describe how the test was carried out and its result.
- If, at a test referred to in Clause 16, the Plant is found not to comply with the Contract, the Contractor shall as soon as possible ensure that the Plant complies with the Contract. At the Purchaser’s request a new test shall then be carried out unless the defect was insignificant.
- Additionally, the Purchaser may, to a reasonable extent or as specified in the Contract, at three days’ notice inspect the manufacture of the Plant during the Contractor’s normal working hours.
- Unless otherwise agreed, the Contractor shall bear all costs for tests carried out where the Plant is manufactured. The Purchaser shall, however, at such tests and at inspections referred to in Clause 19 bear all costs for his representatives, including travel- and subsistence costs.
Purchaser’s Delay, etc.
- If the Purchaser finds that he will not be able to carry out his obligations required for performance of the Works, hereunder his obligations according to Clauses 11, 14 and 15, within the agreed time, or if such delay on his part seems likely, he shall without delay give Written Notice thereof to the Contractor. The notice shall state the reason for the delay and, if possible, how long the delay will last.
If the Purchaser is in delay to perform his obligations, as referred to in the first paragraph, he shall nevertheless pay any part of the Contract price which, but for the delay, would have become due.
- If the Purchaser is in delay or otherwise fails to perform his obligations as referred to in Clause 21, first paragraph, he shall reimburse any additional costs for the performance of the Works which may be incurred by the Contractor in addition to any claims under Clause 25, second paragraph. The Contractor shall be entitled to a reasonable postponement of the time for taking over due to the Purchaser’s default. If the Contractor wishes to claim postponement, he shall without undue delay inform the Purchaser thereof by Written Notice.
If the Purchaser fails to perform his obligations correctly or in time and the default is of substantial importance, the Contractor may suspend his performance of the Contract until the default has been remedied. The Contractor may further terminate the Contract by Written Notice to the Purchaser provided that the Contractor has informed the Purchaser by Written Notice of his intention to terminate and the Purchaser has failed to remedy the default within one month after receipt of that notice. At such termination the Contractor shall be entitled to compensation for the loss he has suffered due to the Purchaser’s default. The compensation shall not exceed the Contract Price.
- Unless otherwise agreed payment shall be made against invoice 30 days after the date of the invoice. Invoicing shall be as follows:
- Where erection is carried out for a lump sum included in the Contract Price, the Contract Price shall be invoiced with 40 % at the formation of the Contract, 50 % when the Plant has arrived at the Site and the remaining part at taking over of the Works.
- When erection is carried out on a time basis, the agreed price for the Plant shall be invoiced with 40 % at the formation of the Contract and 60 % when the Plant has arrived at the Site. Payment for the erection shall be made against monthly invoices.
- When erection is carried out on a time basis the following items shall be indicated separately:
- Travel expenses for the Contractor’s personnel (including local transports), and expenses for transport of their equipment and personal effects.
- The cost of board and lodging and other living expenses for the Contractor’s personnel for each day’s absence from home, including non-working days and holidays. Unless otherwise agreed, such costs shall be reimbursed at the highest rates payable for similar expenses to public employees in the Contractor’s country when travelling to the country where erection is carried out. 24.3. Payment for work during normal working hours based on the number of hours certified by the Purchaser.
- Payment for overtime work based on the number of hours certified by the Purchaser.
- Unless otherwise agreed working hours and over-time are classified according to the regulations in the Contractor’s country.
- Payment according to the rate for normal working hours for time spent on:
- necessary preparations for outward and homeward journeys,
- outward and homeward journeys and other journeys, if any, to which the personnel are entitled according to law, regulation or collective agreement in the Contractor’s country, and
- daily travel between the lodgings and the Site if the time exceeds 30 minutes per day or the time limit that may be specified in the applicable collective agreement in the Contractor’s country.
- Costs incurred by the Contractor for supplyingequipment in accordance with the Contract and, if agreed, payment for use of the Contractor’s own erection equipment.
- Payment for waiting time according to the rates fornormal working hours when work is held up by circumstances for which the Contractor is not responsible.
- Taxes and dues, if any, levied on the amount of theinvoice and to be paid by the Contractor.
- When the parties have agreed that erection shall be carried out for a lump sum, all items under sub-clauses 24.1. through 24.7. are included in the Contract Price.
If the erection work is altered, delayed or temporarily must be suspended due to any circumstances for which the Purchaser or his other contractors are responsible, the Contractor shall, in addition to the Contract Price, be entitled to payment for:
- Waiting time and time spent on extra journeys.
- Extra work, including removing, securing and rein-stating erection equipment.
- Additional costs incurred by the Contractor in ha-ving to keep his equipment on the Site for a longer period than anticipated.
- Additional costs for journeys and for board, lodging and living expenses for the Contractor’s personnel. 25.5. Any other costs and expenses documented by the Contractor to have been incurred by him as a result of the alteration of the erection programme.
- If the Purchaser fails to pay in time, the Contractor shall be entitled to interest from the due date at the rate of interest determined by the law on late payments in the Contractor’s country. The Contractor shall also be entitled to compensation for recovery costs.
If the Purchaser fails to pay by the due date or fails to give agreed securities by the stipulated date, the Contractor may also, after having given the Purchaser Written Notice thereof, suspend his performance of the Contract until payment is made or agreed securities are given.
- If the Purchaser has failed to pay the amount due within three months after the due date, the Contractor may terminate the Contract by Written Notice to the Purchaser. The Contractor shall then, in addition to his rights according to Clause 26, first paragraph, be entitled to compensation for the loss he has suffered. The compensation shall not exceed the Contract Price.
Retention of Title
28. The Plant shall remain the property of the Contractor until the Works have been paid for in full, to the extent that such retention of title is valid under the relevant law.
- The parties shall, no later than when the Contractor gives notice that the Plant is ready for dispatch from the place of manufacture, each by Written Notice appoint a representative to act on their behalf during the work on Site.
The representatives shall be present on or near the Site during working hours. Unless otherwise specified in the Contract, the representatives shall be authorized to act on behalf of their respective party in all matters concerning the erection work. Wherever these General Conditions stipulate that Written Notice shall be given, the representative shall always be authorized to receive such notice on behalf of the party he represents.
- Unless otherwise agreed, the Purchaser shall free of charge provide the Contractor with cranes, lifting equipment, scaffolding and equipment for transport on the Site to the extent necessary for carrying out erection. The Contractor shall specify his requirements in this respect by Written Notice no later than one month before the start of the erection work.
- The Contractor shall ensure that his personnel observe the safety regulations in force on the Site. This does not reduce the Purchaser’s obligations under Clause 11.
The Purchaser may demand that any of the Contractor’s personnel who fails to comply with these safety regulations is denied access to the Site.
- The Contractor shall inform the Purchaser by Written Notice of any special dangers for the immediate environment which erection of the Works may entail.
- The Purchaser may not, without the Contractor’s previous consent by Written Notice, order the Contractor’s personnel to carry out any work.
Contractor’s Right to Inspect
34. The Contractor shall have the right to inspect the Works at the Site at his own expense. Inspections shall be carried out during the Purchasers normal working hours. This right applies until the Works are taken over and during any work pursuant to the provisions of Clauses 54 – 65.
35. The Purchaser may until the Works have been taken over, subject to the limitations in Clause 38, require variations in the originally agreed scope, design and construction of the Works.
A request for a variation shall be made by Written Notice to the Contractor with a precise description of the variation required.
- Until taking over, the Contractor may by Written Notice propose such variations as referred to in Clause 35, first paragraph.
- The Contractor shall, as soon as possible after receipt of a request for a variation or after having himself proposed a variation, by Written Notice inform the Purchaser whether and how the variation can be carried out, stating the effects of the variation on the Contract Price, the time for taking over and other terms of the Contract.
The Contractor shall also give such notice when a variation is required by reason of changes in laws and regulations as referred to in Clause 10.
- Save as provided in Clause 10, the Contractor shall not be obliged to carry out a variation before the parties have agreed in writing on how the variation will affect the Contract Price, the time for taking over and other terms of the Contract.
If the parties are unable to agree on the effects of a variation as referred to in Clause 11, the Contractor shall carry out the variation on a time basis pending agreement or solution of the dispute in accordance with Clause 78.
- When erection is completed the Works shall, unless otherwise agreed, undergo a taking-over test in order to determine whether the Works are in accordance with the Contract.
The Contractor shall inform the Purchaser by Written Notice that the Works are ready for taking over. He shall thereby specify a date giving the Purchaser sufficient time to prepare for and be represented at the test. The test shall be carried out at the Purchaser’s normal working hours.
The technical requirements for the taking-over test shall be as specified in the Contract. If the technical requirements have not been agreed, the test shall be carried out in accordance with normal practice and generally applied standards in the country where the Site is located.
The taking-over test shall be conducted by the Contractor in the presence of representatives of both parties. The Contractor shall record the taking-over test. The test report shall be sent to the Purchaser. Unless the Purchaser proves otherwise, the report shall be considered to correctly describe how the test was carried out and its result.
- The Purchaser shall, free of charge, provide any power, fuel, lubricants, water, raw materials and other materials required for the taking-over test in accordance with Clauses 39 and 42, and for final adjustments in connection with such tests. He shall further, free of charge, install the apparatus and provide the labour required for the taking-over test.
- If, after having been notified in accordance with Clause 39, second paragraph, the Purchaser fails to fulfil his obligations under Clause 40 or otherwise prevents the taking-over test from being carried out, the test shall be regarded as having been satisfactorily completed at the starting date for the taking-over test stated in the Contractor’s notice according to Clause 39, second paragraph.
- If the taking-over test shows that the Works are not in accordance with the Contract, the Contractor shall as soon as possible remedy such deficiencies. Thereafter a new test shall be carried out unless the parties agree otherwise, or the deficiency does not affect the operation of the Works. Clause 39 and 40 shall apply to such new test.
43. When the Works are as specified for taking over in the Contract the Purchaser shall be deemed to have taken over the Works,
- when the taking-over test has been completed or is deemed to have been completed under Clauses 39 – 42, or
- if the parties have agreed that a taking over test shall not be carried out, when the Purchaser receives the Contractor’s notice under Clause 39, second paragraph, first sentence.
Taking over shall however not be prevented by any remaining minor adjustments or additions which do not affect the operation of the Works.
The Purchaser shall without undue delay by Written Notice confirm to the Contractor that the Works are taken over and the time for taking over. Failure by the Purchaser to give such confirmation shall not affect the judgment whether the Works have been taken over.
The Purchaser is not entitled to take the Works or any part of them into operation before taking over. If the Purchaser takes any part of the Works into operation without the Contractor’s consent by Written Notice, the Purchaser shall then be deemed thereby to have taken over the Works. The Contractor shall then be relieved of his obligation to carry out the taking-over test.
44. Unless otherwise agreed, the risk of loss of or damage to the Works shall pass to the Purchaser on taking over.
If it is agreed that the Purchaser shall receive the Plant at the Site, he shall inspect the Plant on arrival and immediately inform the Contractor by Written Notice of any transport damage.
Time for Delivery. Delay
- Delivery of the Works shall be regarded as having been completed at the point of time when the Works are taken over according to Clause 43.
- If, instead of a fixed time for taking over, the parties have agreed on a period of time within which the Works shall be taken over, such period shall start to run at the formation of the Contract.
- If the Contractor finds that he will not be able to complete the Works in time or if delay on his part seems likely, he shall without undue delay inform the Purchaser thereof by Written Notice stating the reason for the delay and, if possible, the time when the Works are expected to be ready for taking over. If the Contractor fails to give such notice, he shall, regardless of the provisions of Clauses 49 and 50, reimburse the Purchaser for any additional expenses which the latter incurs and which he otherwise could have avoided.
- The time for taking over shall be extended by a period which, having regard to the circumstances, is reasonable if the delay in taking-over is caused by one of the following reasons:
- an act or omission on the part of the Purchaser, or
- suspension by the Contractor under Clause 22 and 26, or
- variations under Clauses 10 and 35 – 38, or
- any other circumstance for which the Purchaser is responsible, or
- a circumstance which under Clause 75 constitutes ground for relief.
The time for taking over shall be postponed even if the reason for delay occurs after the originally agreed time for taking over.
- Should the Works not have been taken over in time in accordance with Clause 43, the Purchaser shall be entitled to liquidated damages from the date taking over should have occurred.
The liquidated damages shall be payable at a rate of one per cent of the Contract Price for each commenced week of delay. The liquidated damages shall not exceed ten per cent of the Contract Price.
The liquidated damages become due at the Purchaser’s demand by Written Notice, but not before the Works are taken over or the Contract is terminated by the Purchaser under Clause 50.
The Purchaser shall forfeit his right to liquidated damages if he fails to lodge a claim for liquidated damages by Written Notice within six months after the date when taking over of the Works should have taken place.
- If the delay is such that the Purchaser has become entitled to maximum liquidated damages under Clause 49 and the Works are still not taken over, the Purchaser may by Written Notice to the Contractor demand that the Works be made ready for the taking-over test within a final reasonable period which shall not be less than one week.
If the Contractor fails to complete the Works within such final period and this is not due to any circumstance for which the Purchaser or any other contractor engaged by him is responsible, then the Purchaser may terminate the Contract by Written Notice to the Contractor.
In case of such termination the Purchaser shall also be entitled to compensation for the loss he suffers because of the Contractor’s delay to the extent that the loss exceeds the maximum of liquidated damages to which the Purchaser has become entitled under Clause 49. This compensation shall not exceed 10 % of the Contract Price.
The Purchaser shall also have the right to terminate the Contract by Written Notice to the Contractor if it is clear from the circumstances that a delay will occur which under Clause 49 would entitle the Purchaser to maximum liquidated damages. In case of such termination, the Purchaser shall be entitled to both maximum liquidated damages and compensation under the third paragraph of this Clause.
- Except for liquidated damages under Clause 49 and termination with limited compensation under Clause 50 all claims in respect of the Contractor’s delay shall be excluded.
Liability for Damage to Property Before Taking Over
- The Contractor shall be liable for any damage to the Works which occurs before the risk has passed to the Purchaser. This applies irrespective of the cause of the damage, unless the damage has been caused by the Purchaser or someone or something he is responsible for. Even if the Contractor is not liable for damage to the Works under this Clause, the Purchaser may require the Contractor to remedy the damage at the Purchaser’s cost.
- The Contractor shall be liable for damage to the Purchaser’s property occurring before taking over of the Works only if it can be shown that the damage was caused by negligence on the part of the Contractor or someone or something he is responsible for in connection with the performance of the Contract. The Contractor shall under no circumstances be liable for loss of production, loss of profit or any other consequential economic loss.
Liability for Defects
- The Contractor shall, in accordance with the provisions of Clauses 56 – 67 below, by repair or replacement remedy any defect in the Works resulting from faulty design, materials, workmanship or erection.
Where the Contractor is liable for a defect, he shall also be correspondingly liable for damage to the Works that is caused by the defect.
The Contractor shall not be liable for defects resulting from materials provided by the Purchaser, from a design stipulated or specified by the Purchaser, or from incorrect preparatory work carried out by the Purchaser as referred to in Clause 14.
- The Contractor’s liability does not cover defects caused by circumstances arising after taking over of the Works by the Purchaser according to Clause 43. The liability does not, for example, cover defects due to the conditions of operation deviating from those foreseen in the Contract or to incorrect use of the Works. Nor does it cover defects due to faulty maintenance or incorrect erection by the Purchaser, variations in the Works carried out without the Contractor’s consent by Written Notice, or faulty repairs by the Purchaser. Finally, the liability does not cover normal wear and tear or deterioration.
- The Contractor’s liability is limited to defects which appear within one year after taking over of the Works according to Clause 43. If the Works are used more intensively than agreed, the liability period shall be reduced proportionately.
- When a defect has been remedied by repair or replacement under Clause 54, the Contractor shall have the same liability for defects in repaired parts or in replacement parts as for the original Works for a period of one year. For other parts of the Works the liability period specified in Clause 56 shall only be extended by the period during which the Works could not be used due to a defect for which the Contractor is liable.
- The Purchaser shall give the Contractor Written Notice of a defect without undue delay after the defect has appeared and in no case later than two weeks after the expiry of the liability period defined in Clauses 56 and 57. The notice shall contain a description of how the defect manifests itself. If the Purchaser fails to give notice to the Contractor within the above time limits, he loses his right to make any claim in respect of the defect.
If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Purchaser loses the right to make any claim based on damage to the Works which occurs and which could have been avoided if such notice had been given.
- After receipt of a Written Notice under Clause 58, the Contractor shall remedy the defect without undue delay. The time for remedial work shall be chosen in order not to interfere unnecessarily with the Purchaser’s activities. The Contractor shall bear the costs as specified in Clauses 54 – 66.
Remedial work shall be carried out where the Works are located, even if this is not at the Site, unless the Contractor, with regard to the interests of both parties, finds it more suitable to have the Plant sent to him or to a place as instructed by him.
If the defect can be remedied by repair or replacement of a defective part and dismantling and reinstallation of the part does not require special knowledge, the Contractor may demand that the defective part be sent to him or to a place as instructed by him for repair or replacement. In such case the Contractor has fulfilled his obligations in respect of the defect when he delivers a duly repaired part or replacement part to the Purchaser.
- When remedial work in accordance with Clause 59 shall be carried out where the Works are located, Clauses 11, 15 and 53 shall apply correspondingly.
- The Purchaser shall at his own expense provide the Contractor access to the Works and arrange for any intervention in equipment other than the Works, to the extent that this is necessary to remedy the defect.
- All transports in connection with remedying of defects shall be at the Contractor’s risk and expense. The Purchaser shall follow the Contractor’s instructions regarding how the transport shall be carried out.
If the Works are located elsewhere than on the Site, the Purchaser shall bear the additional costs for remedying a defect which the Contractor thereby incurs.
- Defective parts, which are replaced under Clause 54, shall be placed at the Contractor’s disposal and shall become his property.
- If the Purchaser gives such notice as referred to in Clause 58, and no defect is found for which the Contractor is liable, the Contractor shall be entitled to compensation for the work and costs which he has incurred as a result of the notice.
- If the Contractor fails to fulfil his obligations under Clause 59 in time, the Purchaser may by Written Notice require him to do so within a final reasonable period. which shall not be less than one week. If the Contractor fails to fulfil his obligations within that period, the Purchaser may at his option: a) at the Contractor’s risk and expense undertake or have undertaken necessary measures to remedy the defect, provided that the Purchaser proceeds in a reasonable manner, or
- demand a reduction of the Contract Price not exceeding 20 % thereof, or
- if the defect is substantial, terminate the Contract by Written Notice to the Contractor. The Purchaser shall also be entitled to such termination where the defect remains substantial after measures referred to in a). In case of termination the Purchaser shall be entitled to compensation for the loss he has suffered, however not more than 20 % of the Contract Price.
- Regardless of the provisions of Clauses 54 – 65, the
Contractor shall have no liability for defects in any part of the Works for more than one year from the end of the liability period referred to in Clause 56, first sentence, or from the end of any other liability period agreed upon by the parties.
- The Contractor shall have no liability for defects save as stipulated in Clauses 54 – 66.
Liability for Infringement of Intellectual Property Rights
- Unless otherwise agreed, the Contractor shall, in accordance with Clauses 69 – 72, indemnify the Purchaser against claims from a third party based on infringement of patents, copyrights or any other intellectual property rights protected in Denmark, Finland, Norway, Sweden or in any other country specially agreed by the parties.
- The Contractor shall have no liability for infringement of intellectual property rights arising out of:
- the Works being used elsewhere than in a country referred to in Clause 68, or
- the Works being used in a manner deviating from that agreed or in a way the Contractor should not have foreseen, or
- the Works being used together with equipment or software not supplied by the Contractor, or
- alterations in the Works undertaken by the Purchaser.
Nor is the Contractor liable for infringement of intellectual property rights arising out of a design or construction stipulated or specified by the Purchaser.
- Defence against claims referred to in Clause 68 shall be for the Contractor’s account. The Contractor shall compensate the Purchaser for such amounts as the latter is obliged to pay under a final award or a settlement approved by the Contractor.
The Contractor shall only be liable if the Purchaser without delay informs the Contractor by Written Notice of any claim which the Purchaser receives and allows the Contractor to decide how the claim shall be dealt with.
- In case of an infringement of patent, copyright or other intellectual property rights for which the Contractor is liable according to Clauses 68 – 69, the Contractor shall without undue delay, after receipt of written notice under Clause 70, second paragraph, at his option:
- provide for the Purchaser the right to continue to use the Works, or
- adjust the Works so that the infringement ceases, or
- replace the Works with another non-infringing Works with an equivalent function.
The Contractor has the equivalent responsibility if the Purchaser informs the Contractor by Written Notice of an infringement of patent, copyright or other intellectual property rights, without any claims made against the Purchaser from a third party.
72. If the Contractor fails to fulfil his obligations under Clause 71 in time, the Purchaser may by Written Notice require him to do so within a final reasonable period, which shall not be less than one week. If the Contractor fails to fulfil his obligations within that period, the Purchaser may at his option:
- carry out or have necessary measures carried out at the Contractor’s risk and expense, corresponding to those referred to under Clause 71, first paragraph, provided that the Purchaser proceeds in a reasonable manner, or
- if the infringement causes him substantial inconvenience, terminate the contract by Written Notice to the Contractor. The Purchaser shall also be entitled to such termination where the inconvenience remains substantial after measures referred to in a).
Liability for Damage to Property Caused by the Works After Taking Over
73. The Contractor shall have no liability for damage caused by the Works to any immovable or movable property, or for the consequences of such damage, if the damage occurs while the Works is in the Purchaser’s possession. Nor shall the Contractor be liable for any damage to products manufactured by the Purchaser or to products of which the Purchaser’s products form a part.
The Purchaser shall indemnify and hold the Contractor harmless to the extent that the Contractor incurs liability towards any third party in respect of loss or damage for which the Contractor is not liable according to the first paragraph of this Clause.
The above limitations of the Contractor’s liability shall not apply if he has been guilty of gross negligence.
If a third party lodges a claim for compensation against the Contractor or the Purchaser for loss or damage referred to in this Clause, the other party shall forthwith be notified thereof by Written Notice.
The Contractor and the Purchaser 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 or loss alleged to have been caused by the Works. The relationship between the Contractor and the Purchaser shall, however, always be settled in accordance with Clause 78.
General Limitation of Liability
74. Save as otherwise stated in these General Conditions there shall be no liability for either party towards the other party. This applies to any loss the other party may suffer such as loss of production, loss of profit and any other consequential or indirect loss whatsoever.
The limitation of the liability referred to in the first paragraph shall, however, not apply if a party has been guilty of gross negligence. Nor shall the limitation of liability apply to breach of the obligations referred to in Clause 6, or liability for infringement of intellectual property rights under Clauses 68 – 72.
Grounds for Relief (Force Majeure)
- The following circumstances shall constitute grounds for relief if they impede the performance of the Contract or make performance unreasonably onerous: industrial disputes and any other circumstance beyond the control of the parties, such as fire, natural disasters and other extreme natural events, war, mobilization or military call-up of a comparable scope, requisition, seizure, trade and currency restrictions, insurrection and civil commotion, shortage of transport, general shortage of materials, restrictions in the supply of power and defects or delays in deliveries by sub-contractors caused by any such grounds for relief.
The above described circumstances shall constitute grounds for relief only if their effect on the performance of the Contract could not be foreseen at the time of formation of the Contract.
- The party wishing to claim relief under Clause 75 shall without delay give the other party Written Notice on the intervention and on the cessation of such circumstance.
If grounds for relief prevent the Purchaser from fulfilling his obligations, he shall reimburse the expenses incurred by the Contractor in securing and protecting the Works. The Purchaser shall further reimburse any costs incurred by the Contractor for personnel, subcontractors or equipment which, with the Purchaser’s consent, are held in readiness to resume performance of the Works.
- Notwithstanding other provisions of these General
Conditions, either party shall be entitled to terminate the Contract by Written Notice to the other party, if performance of the Contract is prevented for more than six months by reason of a ground for relief as described in Clause 75.
Disputes. Applicable Law
- Disputes arising out of or in connection with the Contract shall be settled by arbitration in accordance with the law on arbitration applicable in the Contractor’s country. However, if the amount in dispute does not exceed EUR 50,000, VAT excluded, or the equivalent amount in the currency of the Contract, the dispute shall be settled by a general court in the Contractor’s country.
- All disputes arising out of the Contract shall be judged according to the law of the Contractor’s country.
You are purchasing standard software from ifm in order to use it for your applications or for the applications of your customers.
Section 1 - Subject matter of the agreement
- The subject matter of this agreement is the permanent provision of the computer program referred to in the pertaining product description including the associated user documentation ("contract software") against payment and free of charge and the granting of the rights of use for the software described in section 2. The hardware and software environment necessary for the use of the contract software is also specified in the product description.
- The contract software and the user documentation are available on the website. If the software is protected by a license key, you shall receive the license key exclusively for the use of the software as specified in these terms, the product description and the user documentation.
- The functionality of the contract software is fully apparent from the product description. The specifications therein shall be understood as a service description and cannot be construed to constitute a guarantee. A guarantee is only granted if it has been explicitly designated as such. Installation and configuration services are not part of these terms.
Section 2 - Granting of rights
- Unless otherwise specified (e.g. in the case of demo versions), you are granted a non-exclusive right to use the contract software, unlimited in time, to the extent granted in these terms and in the product description. The contract software may only be used on one device or one virtual machine per purchased license. The permitted use includes the installation of the contractual software, loading into memory and use in accordance with the intended purpose. Under no circumstances shall you be entitled to make the purchased contract software available for hire or sublicense it in other ways, to publicly reproduce it or make it accessible via wired or wireless communication means, or to make it available to third parties in return for payment or free of charge, e.g. by way of Application Service Providing or Software as a Service. This shall have no effect on the validity of para. 4.
- You shall be entitled to create a backup copy of the contract software if this is deemed necessary for its continued use. You undertake to visibly affix the word "Backup copy" as well as a copyright notice referring to ifm on the backup copy created by you.
- You shall be entitled to decompile and duplicate the contract software to the extent permitted by law.
- You shall be entitled to permanently permit the use of the purchased copy of the contract software to a third party by transferring the license certificate and the documentation. In this case, you shall fully cease the use of the program, delete any installed copies of the program from your computers and delete any copies on other data storage media or transfer these copies to us, provided that you are not required by law to retain such copies for a longer period. Upon our request, you undertake to confirm in written form that the mentioned measures have been carried out in full or, if necessary, to state reasons for a longer retention period. In addition, you shall explicitly agree with the third party to comply with the scope of the granting of rights under this section 2.
- If you use the contract software in a manner that qualitatively (in terms of the nature of the permitted use) or quantitatively (in terms of the number of purchased licenses) exceeds the purchased rights of use, you undertake to purchase the remaining rights immediately. If you fail to do so, we shall be entitled to assert our rights in accordance with this agreement.
- Copyright notices, serial numbers or other features serving to identify the program must not be removed from the contract software or altered.
Section 3 - Warranty
- In the event that the contract software is made available against payment, we shall warrant the agreed quality of the contractual software pursuant to the following provisions, and that you can use the contractual software without breaching the rights of third parties.
The warranty shall not apply to defects attributable to the use of the contract software in a hardware or software environment that is incompatible with the requirements stipulated in these terms and the product description or to alterations and modifications you have made to the software without being entitled to do so pursuant to law or these terms or by our prior written consent.
- You undertake to examine the contract software promptly after receipt for apparent defects and to promptly notify us of such defects; otherwise, any warranty for such defects shall be excluded. The same shall apply to cases where such defects become apparent at a later stage.
- In the event of a material defect we shall initially be entitled to subsequent performance, i.e., at our choice, to remedy the defect ("rectification") or to deliver a replacement. If a replacement is provided, you may receive a more recent software version, except where this results in unreasonable impairments. In the event of defects of title, we shall, at our option, procure a legally valid means of using the contract software or modify it in such a way that it no longer infringes any third party rights.
- We shall be entitled to provide the warranty services at your premises. We shall also meet our obligation to rectify defects by making updates available for download through an automatic installation routine on our website, and by offering you telephone support to help resolve any installation issues that may arise.
- This does not affect your right to reduce the purchase price or rescind the contract if efforts to provide a remedy or replacement delivery fail twice. The right to rescind the contract is excluded in the event of insignificant defects. If you claim compensation for damages or futile expenses, our liability shall be governed by section 4.
- With the exception of claims for damages, warranty claims on the basis of material defects shall be subject to a statutory limitation period of two years. If a data carrier is sold, the statutory limitation period shall start upon delivery of the contract software, in the event of a sale involving a download from the Internet, it shall start upon notification and activation of the access data for the download section. Claims for damages and claims for reimbursement of futile expenses shall be governed by section 4.
- If a maintenance contract exists between the parties, the time limit for removal of defects shall be determined by the periods stipulated therein.
Section 4 - Liability
- Unless agreed otherwise in individual cases, we shall be liable in accordance with this section 4.
In accordance with this section 4, we shall be liable without limitation
- in case of intent or gross negligence;
- in case of damage to life, limb or health;
- pursuant to the provisions of the German Product Liability Act; and
- under a warranty assumed.
- In the event of a breach of obligation due to slight negligence, where the said obligation is essential for fulfilling the purpose of the contract (cardinal obligation), our liability shall be limited in amount to the damage that is foreseeable and typical for this type of business.
- Any further liability on our part shall be excluded.
- The aforementioned limitation of liability shall also apply to the personal liability of our employees, representatives and bodies.
Section 5 - Security measures, right to carry out audits
- You shall take suitable measures to protect the contract software and, where applicable, the online access data, from access by unauthorised third parties. In particular, all copies of the contract software and access data must be kept in a safe place.
- On request, you shall allow us to verify the correct use of the contract software, and especially whether you are using the program both qualitatively and quantitatively within the scope allowed by the acquired licenses. For this purpose, you shall provide us with information, let us inspect relevant documents and files and enable us, or an auditing company appointed by us which is acceptable to you, to examine the hardware and software environment employed. We may carry out the audit at your premises during regular business hours, or may have it carried out by a third party who is bound by professional secrecy. We shall ensure that such activities at your premises will have the least possible impact on your business operations. If it follows from the audit the number of licenses used exceeds the number of licenses acquired by more than 5% (five percent) or that there are other usages not in keeping with the contract, you shall bear the costs of the audit; otherwise the costs shall be borne by us.
Section 6 - Miscellaneous
- You shall be able to transfer to third parties any claims against us based upon this contract only following our written consent. This shall have no effect on the validity of section 2 para. 4.
- Any terms of business which may contradict these license terms shall be inapplicable.
- The parties are aware that the contract software may be subject to export or import restrictions. In particular, there may be obligations to obtain permission, or the use of the software or associated technologies abroad may be subject to restrictions. Applicable export and import control provisions of the Federal Republic of Germany, the European Union and the United States of America as well as any other applicable regulations have to be adhered to. Our performance of the contract is subject to the proviso that there are no obstacles to performance due to national and international regulations of export and import law or any other legal provisions.
- This contract shall be governed by the law of the country in which ifm is headquartered. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention) shall be excluded.
- Place of jurisdiction is at the place of business of ifm.
We hereby inform the buyer that various products of the ifm group contain open source components. Depending on the product, these open source components are subject to the General Public License Version 1, 2 or 3 (General Public License 3 in combination with the GNU Compiler collection Runtime Library Exception Version 3.1), the Lesser General Public License Version 3, Berkeley Software Distribution (BSD-2-Clause, BSD-3-Clause, BSD-4-Clause)", the Academic Free License Version 2.1, MIT-License (MIT), Python Software Foundation License 2.0, Perl Artistic License and Artistic License 2.0, Microsoft Public License, Apache Software License Version 1.0, 1.1 and 2.0, ISC License, libpng License and the zlib License or other licenses that are apparent from the information for the respective product. This means that the buyer may only provide these components (and any further derived parts) in accordance with the aforementioned licenses, some of which require the source code to be disclosed to third parties. The buyer undertakes to observe the respective license when using, processing and passing on the open source components. The relevant licence texts are stated in the product-related accompanying materials (e.g. user manual, installation instructions, downloads or other information materials).
The parties have concluded an agreement on the provision of software. The terms and conditions below apply to the provision of software maintenance services by ifm electronic gmbh (hereinafter referred to as “service provider”) in respect of the software supplied to the customer. Deviating terms and conditions of the customer are expressly not recognised.
ifm electronic gmbh or an affiliate company of ifm electronic gmbh.
Special agreement between the customer and service provider on the provision of software.
Natural or legal person who commissions the service provider to provide the contractual services.
The computer program specified in the main contract.
New program version of a software used to eliminate errors found in the previous program version.
New program version of a software containing new or improved functionalities of the software.
2. Subject matter of the contract
The service provider provides software maintenance services in respect of the software supplied to the customer. The provision of the services described here is dependent on the conclusion of the main contract.
There is no special remuneration owed for the services rendered by the service provider unless otherwise mutually agreed.
4. General obligations (to perform), cooperation of the customer
The customer shall provide the service provider with all the information required to properly assess and process the respective service query without being prompted to do so.
Furthermore, the customer is obliged to install the updates made available to it by the service provider and to use only the most current version of software or the version prior to the most current version. This shall not apply if this is unreasonable, for example because the most current or the predecessor software version is/are defective, and this would impair the customer's operations.
5. Scope of service, service times
The service is provided by the service provider by email or over the phone in German or in English.
The current service times available on the country-specific homepage of the service provider apply, e.g. https://www.ifm.com/de/de/de/kontakt/kontakt for Germany.
The service provider is obligated to respond to a service query within the response times defined below. Response time refers to the time taken to respond once a service ticket has been opened by the service provider describing a specific and reproducible incident (“ticket creation”). Response times are measured during the respective service period.
The following response times apply whereby the priority of the incident is defined by the customer:
|high||The incident has a serious impact on business operations or activities, or business operations cannot be carried out. The incident requires immediate action because significant losses may result or overall business operations may be affected.||4h|
|medium||Due to the failure, a business transaction does not function as intended. The incident has a minor impact on business operations.||8h|
|low||The incident has a minor impact or no impact on business operations.||24h|
Incident: An incident within the meaning of these terms and conditions is said to have occurred if the software, when used according to the contractual purpose, the scope of services agreed and the system requirements outlined by the provider, does not provide the functionalities described in the product/service description during the term of this contract.
The manner in which the services are provided is at the reasonable discretion of the service provider. The service may also take the form of guidelines or instructions for the customer. The customer is required to adhere to such instructions.
6. New program parts
The service provider shall continue to work on developing the software licensed to the customer and shall incorporate future developments in updates or upgrades.
The service provider can at any time replace the software licensed to the customer with updates or upgrades at its own reasonable discretion.
The service provider shall grant the customer usage rights to such updates and upgrades in accordance with the underlying main contract.
The service provider shall be liable in accordance with statutory regulations for any loss or damage to the customer caused with intent or by gross negligence, or which ensues from the absence of a warranted property, arises from a culpable breach of cardinal duties, results in harm inflicted on life, limb or physical health, or where liability is assumed under the product liability law.
Cardinal duties include those contractual obligations which have to be fulfilled in order for the agreement to be executed in the first place; which the contractual partner may rely on being performed as a matter of course; and which if breached by the other party may jeopardise the very purpose of the contract.
If a cardinal duty is breached, liability – provided the damage is merely caused by slight negligence – shall be limited to those losses which are typical and foreseeable and must therefore be anticipated in connection with the provision of software under the contractual agreement.
If the damage suffered by the customer is due to loss of data, the service provider shall not be liable for this.
In all other respects, liability – irrespective of the particular legal basis – shall be excluded.
8. Term of contract and termination
This agreement is linked to the term of the main contract and automatically ends once the main contract expires or is terminated in some other way. If the main contract is extended, then this agreement shall be extended automatically, too.
The following applies to ifm moneo software products:
With the purchase of the software, the customer acquires a right to (free) service until the end of the calendar year in which it purchased the corresponding moneo modules and the following year. At the end of the following year, the entitlement to services expires. The customer can either conclude a new service contract or book individual services as required. This presupposes compliance by the customer with the obligations to perform and cooperate described in Clause 4.
9. Final provisions
If individual clauses contained in this contract are or become legally ineffective – in part or in full – the validity of the remaining provisions of this contract shall not be affected.
This contract shall be governed by the law of the country in which ifm is headquartered. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention) shall be excluded.
The exclusive place of jurisdiction for disputes arising from or in connection with the agreement shall be at the registered office of ifm.
As of: Dec. 2020