1. Orders
1.1 An order is not binding on SELCO A/S ("SELCO") until confirmed in writing by SELCO, e.g. in the form of an order confirmation or a written agreement and only extending to terms confirmed in writing by SELCO. Where SELCO has commenced work on and/or delivery of a service to the Customer, an agreement will be considered concluded between the Parties notwithstanding the fact that a written contractual basis in the form of an order from the Customer and an order confirmation do not exist. The Parties' rights are in such case governed by the terms in the present terms and conditions. The Customer is, however, only under an obligation to pay for SELCO's services where the Customer was aware of or should have realised that SELCO had commenced work on and/or delivery of the services or where the Customer subsequently accepts to receive the services.
1.2 Where one of the Parties wants to change an agreement and where the Parties can agree on such changed terms, the Parties must prepare an addendum to the Agreement. An addendum is not binding on SELCO until confirmed in writing by SELCO, and only extending to terms confirmed in writing by SELCO, cf. however clause 1.1.
1.3 The Customer hereby authorises the employee with technical responsibility from time to time or other usual contact at SELCO to enter into commitments vis-à-vis SELCO in every respect with binding effect for the Customer, including the placement of orders as well as changes or terminations of agreements already concluded.
2. Scope of services
2.1 The services that are to be delivered by the Customer and SELCO, respectively, are specified in detail in the Agreement. The Agreement constitutes an exhaustive list of the services to be delivered.
2.2 Where the Customer has special expectations or demands concerning the result of the services that are to be delivered under the Agreement, the Customer must ensure that such demands are described in the Agreement. If such demands are not described, SELCO is merely under an obligation to deliver the agreed services. In this connection, SELCO is under an obligation to accommodate the demands concerning the quality of the services following from clause 3.
3. The Parties' obligations
3.1 Each of the Parties is under a separate obligation to meet its obligations inherent in the concluded agreements in good faith and to comply with the terms of such agreements. From time to time, SELCO undertakes to:
(i) Cooperate to the extent necessary with the Customer in the performance of the Customer's tasks concerning concluded agreements.
(ii) Make qualified resources available to perform the agreed tasks. SELCO is at all times entitled to replace resources, including named persons allocated to an agreement with other corresponding resources.
3.2 The Customer accepts to contribute with the resources necessary for SELCO's performance of its obligations under the concluded agreements. From time to time, the Customer undertakes to:
(i) Cooperate to the extent necessary with SELCO in the performance of SELCO's tasks concerning concluded agreements.
(ii) Make qualified resources available to SELCO, who have completed relevant training and have the competence required to make decisions concerning the execution of the concluded agreements.
(iii) Make any reasonable facility and resource available to SELCO, such as staff, premises with reasonable access, space, light and window conditions, working facilities (e.g. tools, computer and software) and communication facilities.
(iv) Ensure the technical environment which SELCO's employees work in/with such that no risk arises for loss of or damage to the Customer's systems, including loss of or damage to data.
(v) Ensure adequate backup of data and configuration parameters before SELCO's employees obtain access to the Customer's systems. Backup must include all forms of data and software, including data concerning works in progress or tasks in which SELCO is involved (unless otherwise expressly agreed in writing between the Parties, SELCO does not prepare backups of such data, notwithstanding the fact that the data have been produced by SELCO and notwithstanding the fact that the data are stored in a computer system or equipment which has not yet been taken over by the Customer).
(vi) Have necessary, adequate and required security measures in place with a view to avoiding and minimising damage to the Customer's systems, including safeguarding against short-circuiting etc.
4. Price and terms of payment
4.1 Unless otherwise stated in the Agreement, SELCO is entitled to invoice the Customer for services rendered on the basis of time actually consumed. In this connection, SELCO must on an ongoing basis prepare appropriate documentation for the scope of the services rendered in the form of hour sheets or the like. Where hourly prices are not stated in the Agreement, SELCO's list prices at the time of conclusion of the Agreement apply.
4.2 Where a fixed price has been agreed, such price does not consider the fact that all of the work or some of the work is to be performed outside normal working hours, cf. clause 4.6. Outlays etc. are also not covered by such fixed price and must be paid separately. A fixed price is based on the information and descriptions which the Customer has submitted to SELCO prior to the conclusion of the Agreement, and where SELCO subsequently becomes aware of matters which must be deemed to affect SELCO's assessment of the scope of the work, which SELCO should not have been aware of, SELCO is entitled to notify the Customer of the consequences such information will have to the agreed price. Where on this background, the Customer wants the work to be stopped, the Customer must notify SELCO hereof in writing immediately and the Customer is thus only obligated to pay for the work performed until SELCO receives notification that the work is to be stopped. In such situation, the amount due to SELCO must be calculated in accordance with time spent, however, such that the claim cannot exceed the fixed price agreed. Furthermore, the Customer must pay the expenses for materials etc. and outlays incurred by SELCO, including expenses incurred in connection with work performed by a third party.
4.3 Where a task cannot be solved within a fixed time period, an estimate may be given. Such an estimate is based on the Customer's requests and SELCO's knowledge about the project at the time of conclusion of the Agreement. In case of a significant overrun of such estimate, the Customer must be notified hereof immediately, such that the Parties can jointly agree on the necessary consequential adjustments.
4.4 Unless such overruns can be attributed to SELCO's material breach, SELCO is not responsible for the result where the customer, in the event that the Customer in connection with an overrun of the estimate, does not want the project to continue. The Customer pays SELCO for the hours spent prior to the Customer's request to stop the work has been received by SELCO.
4.5 SELCO is entitled to have all outlays covered, including for transportation, meals and accommodation.
4.6 SELCO is entitled to overtime pay, where the work according to joint agreement between the Parties, is performed during weekends, on holidays or on weekdays outside the period 8:00 am to 6:00 pm. After 6:00 am and before 8:00 pm on all weekdays, the Customer must pay a surcharge of 50% compared with the agreed hourly prices. Where the work is to be performed during a different period than the period stated above, SELCO is entitled to a surcharge of 100% compared with the agreed hourly prices. Where a fixed price has been agreed, overtime pay must be paid as stated in the above, however, such that the percentage surcharges are calculated on the basis of SELCO's usual hourly-based list prices.
4.7 SELCO is entitled to invoice the Customer monthly in arrears for services rendered. The terms of payment are net thirty (30) days.
4.8 In the event of late payment, SELCO is entitled to charge interest from the due date at a rate corresponding to the rate of the Danish central bank (Denmark’s National bank) plus 9% per year. Where payment is not made by the due date, SELCO reserves the right, where necessary, to retain further deliveries or parts hereof and/or notify the Customer in writing that the Agreement is terminated in whole or in part. Where SELCO terminates the Agreement, SELCO is entitled to damages.
4.9 Where payment is not received by the fixed due date, this may result in additional collection costs being incurred in accordance with the collection legislation. All collection costs, including any legal costs, are to be borne by the Customer
5. Documentation and instructions
5.1 SELCO does not prepare technical documentation for services rendered unless otherwise agreed in writing.
6. Delivery and time of delivery
6.1 The Parties agree on delivery time and other relevant deadlines upon conclusion of the Agreement. Where such deadlines are not agreed, each Party may, at a written notice of thirty (30) days, demand that the Agreement be executed.
6.2 Where the Customer does not perform its obligations under these terms and conditions, or where SELCO is in any other way prevented from performing its obligations as a consequence of causes attributable to the Customer, SELCO is entitled to demand that fixed deadlines for the execution of work or delivery of services be postponed by the duration of the delay and a fair start-up period after the delay has ended.
6.3 Irrespective of whether SELCO demands that the fixed deadlines be postponed, SELCO is entitled to demand payment from the Customer in addition to prices already agreed for any resources which it has not been possible to exploit due to matters at the Customer, e.g. due to the inability to allocate service resources elsewhere as well as for any additional consumption of resources and for any additional expenses.
6.4 Where a delay is mainly due to matters at the Customer, payments will fall due at the originally fixed times for payment, notwithstanding that the work, phases, milestones and tests etc. which were to trigger these payments have not yet been performed.
6.5 For all services, delivery takes place as the services are performed by SELCO.
6.6 Where design or configuration are to be performed, delivery will be deemed to have been made when SELCO notifies the Customer that the solution/equipment is ready for testing and/or when the Customer has received the solution/equipment or has received access to the solution/equipment in another way.
7. Delay and postponement
7.1 Where one of the Parties realises that a delay will arise, the Party in question is under an obligation to notify the other Party hereof without undue delay. The Parties are subsequently under an obligation to attempt in good faith to limit the delay and mitigate any damaging effects of the delay to the widest possible extent.
7.2 Where a delay is due to matters on the part of SELCO, the Customer is entitled to a postponement proportionate to the duration of the delay of payments triggered by the completion of the delayed tasks, phases, milestones, tests etc.
7.3 SELCO is entitled to postpone any deadline agreed between the Parties by giving a notice of two days. Such postponements must constitute no more than twenty (20) working days in total. SELCO's exercise of its right to make postponements thus does not result in the existence of delay on the part of SELCO, and the Customer has no remedies in connection with such postponement of deadlines.
8. Special aspects concerning design and configuration work
8.1 All intellectual property rights produced in connection with the performance of design and/or configuration of special solutions, or which are in any other way connected to deliveries to the Customer, including any related documentation such as manuals and other user instructions, are the property of SELCO.
8.2 The Customer merely obtains a right of use to the delivery corresponding to the terms governing the Customer's acquisition of a license to the solution developed by SELCO. These license terms can be obtained from SELCO at any time.
9. Complaints and liability
9.1 The Customer is under an obligation to control all types of deliveries and services delivered by SELCO immediately upon such delivery and to notify SELCO of any defects immediately.
9.2 Any complaints must in any event reach SELCO within one month from the time at which the service was performed. SELCO's liability for defects, including its obligation to rectify defects, lapses one month from the time at which the service was performed.
9.3 As regards testing, the Customer is under an obligation to produce test specifications and test data. When giving notification of defects, the Customer must to the widest degree possible provide an adequately detailed written description of the problem.
9.4 An attempt will be made to rectify defects in deliveries within a reasonable time from receipt of notification of the defect from the Customer.
9.5 In connection with the rectification of defects, SELCO is entitled to have all outlays covered, including for transportation, meals and accommodation.
9.6 Where a defect has been rectified, SELCO's liability does not extend beyond one year from the original date of delivery of date of performance of the service.
10. Limitation of liability
10.1 SELCO cannot under any circumstances be liable to pay total damages exceeding the Customer's total payment under the agreement which the claim concerns, and is under any circumstances liable for a maximum amount of DKK 50,000 for each individual agreement. This maximum figure, including the overall maximum for each individual agreement of DKK 50,000, applies as a total accumulated maximum figure for all aspects of an agreement entitling the Customer, including the Customer's affiliated or associated companies, to damages, irrespective of whether such claim for damages is made due to negligence or gross negligence on the part of SELCO.
10.2 SELCO is not liable for any indirect loss, such as consequential loss, operational loss, loss of data and expenses until such data is re-established or loss of profits, irrespective of whether such loss is caused by negligence or gross negligence.
10.3 SELCO has product liability in accordance with the mandatory legislation in this respect in force from time to time. SELCO assumes no product liability beyond such statutory liability.
10.4 SELCO waives all liability for loss and damage arising in connection with SELCO making service staff available on tasks on which the overall management for the task is handled by the Customer or a third party. SELCO's limitation of liability applies to any loss and damage arising due to negligence, gross negligence or intent.
10.5 The Customer must be placed in the same position as if the service staff were employed by the Customer. The Customer's possibilities of having the loss and/or damage covered is limited to the liability for which claims can be made directly towards the service staff according to the general rules of Danish law. The Customer undertakes to indemnify SELCO against any claim made by the service staff against SELCO as a consequence of the Customer's claims against the service staff, including claims brought by the service staff against SELCO.
10.6 The above limitation of liability and disclaimers also apply to SELCO where a claim is made against the Customer resulting in non-contractual liability on the part of SELCO.
11. Force majeure
11.1 Neither Party is liable for breach, where such breach is due to matters which the Parties should have anticipated at the time of conclusion of the Agreement, including strikes and lock-outs. Where delayed delivery or delayed payment is due to such matters, the time of delivery or the due time for payment is postponed by the time which the obstacle lasts.
12. Disputes
12.1 These terms and conditions are governed by Danish law and disputes must be decided by SELCO's home court as stipulated in SELCO's Articles of Association.