Terms & conditions
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General Conditions of Delivery and Installation
Clause 1. Scope
1.1 These General Conditions of Delivery and Installation (“General Conditions”) shall apply to all deliveries of products (“Products”) and installation work of Products (the Products to be delivered and the result of the installation work to be done under a contract hereinafter referred to as the “Works”) from AGRAMKOW Fluid Systems A/S (“AG”) or its Group Companies (each of which is referred to as “AG”) to any purchaser (“Purchaser”) (AG and the Purchaser hereinafter collectively referred to as the “Parties” and individually a “Party”). In the event that deviations from these General Conditions are expressly agreed upon in writing between the Parties, the remaining stipulations in these General Conditions shall continue to apply.
Clause 2. Confirmation of Order
2.1 AG shall not be deemed to have accepted an order until written confirmation of the order from AG is received by the Purchaser in question. Quotations, pro forma invoices and the like are nonbinding shall be subject to final confirmation in writing by AG. When AG has issued a final confirmation in writing in accordance with the aforementioned a contract (“Contract”) shall be deemed to have been entered into between AG and the Purchaser incorporating these General Conditions even without these General Conditions being referred to or attached to such Contract.
Clause 3. Product information
3.1 No liability for errors in or wrong interpretation of the information and technical data contained in catalogues, leaflets, brochures, circulars, advertisements, photographic material, price lists, etc. specifying quality, dimensions and weight can be imposed upon AG. Such information shall only be binding to the extent that AG expressly lists these as an integral part of the Contract.
3.2 Suggestions, advice and other services, other than those contained in AG catalogues, leaflets, and other printed material shall be used by the Purchaser at his own risk.
Clause 4. Norms and Standards - product modifications
4.1 All Products are built according to European Norms and Standards if nothing else has been agreed upon in writing between the Parties.
4.2 Provided no agreed technical specification is changed, AG reserves the right to make alterations to its Products without notice, also to Products already placed on order.
Clause 5. Drawings and technical information
5.1 Drawings, technical information, and the like which have been handed over by AG prior to or following the conclusion of the Contract, shall remain AG’s property and may not without AG’s prior written consent be passed on, copied or otherwise communicated to a third party. The Purchaser is further obliged to treat all material received from AG as confidential.
Clause 6. Preparatory work
6.1 The Purchaser shall at his own cost undertake all preparatory work to ensure that the conditions necessary for AG’s installation of the Products at the place where the Products are to be installed (“the Site”) are fulfilled no later than four weeks before the delivery date stated by AG. If the Purchaser is responsible for transporting the Products to the Site, he shall ensure that the Products are on the Site before the agreed date for starting the Works.
6.2 In the event that simulation software is provided, the Purchaser shall be required to verify the simulation results on its real system in advance in a test environment, taking into account the applicable security or other relevant provisions. In this respect, the Purchaser shall perform an independent risk assessment of the systems and components.
Clause 7. Testing the Products during manufacturing
7.1 Where the Contract provides for the Products to be tested in connection with its manufacture, such test shall unless otherwise agreed, be carried out where the Products are being manufactured.
7.2 AG shall give notice to the Purchaser of these tests in time to allow the Purchaser to be represented at the tests. If the Purchaser is not represented at the tests, the test report shall be sent to the Purchaser and shall be accepted as accurate.
Clause 8. Purchaser’s delay
8.1 If the Purchaser finds that he will not within the agreed time be able to carry out his contractual obligations necessary for completion of the Works, including his preparatory work, or if such delay on his part seems likely, he shall without undue delay by written notice inform AG thereof. The notice shall state the reason for the delay and how long the delay will last. If the Purchaser is in delay in carrying out his contractual obligations as referred to in this clause, he shall nevertheless pay any sum dependent on the AG’s progress as if the delay had not occurred.
8.2 If the Purchaser is in delay or otherwise fails to comply with his obligations, he shall reimburse any additional cost thereby incurred by AG in addition to any other claims under these General Conditions. AG shall be entitled to an extension of the time for completion by reason of the Purchaser’s default.
8.3 If the default must be considered substantial, AG may refuse to continue delivery and installation until the default has been remedied. AG may terminate the Contract by written notice to the Purchaser if the Purchaser has not remedied the default within one month after having received a written notice from AG stating AG’s intention to terminate the Contract. If the Contract is terminated, AG may claim compensation from the Purchaser for any loss suffered due to the Purchaser’s default.
Clause 9. Payment – price
9.1 AG reserves the right to adjust accepted prices in the event of alterations in rates of exchange, variations in costs of materials, changes in wages, interference on the part of the government, or similar circumstances beyond AG’s control.
9.2 Payment shall be effected by irrevocable confirmed letter of credit without recourse, opened with a bank mutually agreed upon in favour of AG immediately after receipt of confirmation of the order, in accordance with the International Rules for Documentary Credit. The letter of credit shall cover the invoiced amount, together with such expenses as AG defrays for the account of the Purchaser, such as freight, insurance, and fees, if any.
9.3 The letter of credit shall permit transshipment and part delivery. In the event of delayed opening of letter of credit, AG shall be entitled to (i) cancel the Contract, (ii) to keep it in force subject to an extension of the delivery time at AG’s discretion and/or (iii) to claim damages.
9.4 Should special terms of payment, other than those indicated above, be necessary due to exceptional circumstances, the following must be observed:
a) The purchase price, together with value added tax, if any, for the Products delivered by AG must be paid on the payment date stated in the invoice. If no specific payment date is indicated on the invoice, the invoice becomes due 30 calendar days after the date of the invoice; and
b) where a payment is not received when due, interest at the rate of 1.5% on the due payment for each full month or part thereof will be payable. This rate of interest shall also apply in cases where an extension of the period of credit has been granted.
9.5 The Purchaser shall not be allowed to retain payments, or to settle debts by setting off any counterclaims disputed by AG, or to reduce the invoiced price.
Clause 10. Retention of title
10.1 Until full payment of the Products, including payment for the Works, has been received by AG, the Products shall remain the property of AG and shall not be pawned or pledged in any way.
10.2 The Purchaser shall at the request of AG assist AG in taking any measures necessary to protect AG’s title to the Products.
10.3 The retention of title shall not affect the passing of risk under clause 15.
Clause 11. Installation
11.1 No later than by AG’s notice to the Purchaser that the Products are ready for delivery from the place of manufacture, each Party shall each appoint a representative to act on their behalf during the work on the Site. The representatives shall be present on or near the Site until the Works have been taken over. The representatives shall be authorized to act on behalf of their respective Parties in all matters concerning the Works.
11.2 The Purchaser shall at his own cost provide AG with necessary unskilled labour on the Site, unless otherwise agreed.
11.3 The Purchaser shall at his own cost provide AG with all equipment, which AG deems necessary for carrying out the Works on the Site, such as cranes, lifting equipment, scaffolding or equipment for transport on the Site.
Clause 12. Right to inspect
12.1 AG shall be entitled to inspect the Works at the Site at any time.
Clause 13. Taking-over tests
13.1 When installation has been completed taking-over tests shall be carried out to determine whether the Works are in accordance with the Contract, unless otherwise agreed.
13.2 The Contract shall specify the technical requirements for carrying out the taking-over tests. If the Contract does not specify the technical requirements, the taking-over tests shall be in accordance with the general practice and the standards generally applied in the country where the Site is located.
13.3 AG shall inform the Purchaser when the Works are ready for taking-over. AG shall set a time for taking-over tests. Both Parties shall attend at the taking-over tests.
13.4 If the Purchaser does not attend the taking-over tests, the tests may be carried out in his absence.
13.5 AG shall keep a record of the taking-over tests. The report containing the record shall be sent to the Purchaser. The report shall be deemed to accurately record how the tests were carried out and their result.
13.6 If the Works by the taking-over tests turn out not to be in compliance with the Contract, AG shall within reasonable time ensure that the Works comply with the Contract.
13.7 The Purchaser shall at his own cost provide any materials required by AG for the taking-over tests, such as power, fuel, greasing substance, water and other raw materials.
13.8 If the Purchaser fails to fulfil his obligations under clause 13.7 or otherwise fails to provide assistance for the taking-over tests, thereby preventing the tests from being carried out, the taking-over tests shall be deemed to have been satisfactorily completed at the time stated by AG in accordance with clause 13.3.
Clause 14. Taking-over
14.1 The Purchaser shall be deemed to have taken over the Works,
a) when the taking-over tests have been carried out or shall be deemed to have been carried out in accordance with the provisions of clause 13, or
b) if it is agreed that taking-over tests shall not be carried out, when the Purchaser receives information from AG according to clause 3, first sentence, and the Works are in the condition required for taking-over as specified in the Contract.
14.2 Any minor adjustments and additions to the Works which do not affect the operation of the Works shall not, however, prevent taking-over.
14.3 The Purchaser shall without undue delay by written notice confirm to AG that the Works have been taken over and the time for taking-over. Failure by the Purchaser to give such confirmation shall not affect the judgment of whether the Works have been taken over.
14.4 Until taking-over the Purchaser shall not be entitled to take the Works or any part of them into operation. If the Purchaser takes the Works or any part of them into operation without AG’s consent by written notice the Purchaser shall be deemed to have taken over the Works. AG shall then be relieved of his obligation to carry out taking-over tests.
Clause 15. Delivery and passing of risk
15.1 Products are delivered Free Carrier (FCA, cf. INCOTERMS 2020) from the place of manufacture, exclusive of packaging, loading, freight and insurance. The risk of loss or damage to the Products shall pass to the Purchaser in accordance with agreed Incoterms-clause. When delivery has been effected, Products will not be credited if returned to AG without prior written agreement with AG.
15.2 If the Purchaser so desires, AG will at the cost of and on behalf of the Purchaser effect “Marine Insurance on English all risk conditions from warehouse to warehouse“ at the c.i.f or c.i.p value of the Products + 10%, and AG will likewise effect war risk insurance.
15.3 The Works shall be regarded as having been delivered at the time at which they are taken over in accordance with the provisions of clause 14. The risk of loss of or damage to the Works shall pass to the Purchaser at this time. If the Purchaser assumes responsibility for transporting of the Products according to the agreed Incoterms-clause, the Purchaser shall bear the risk of loss or damage for the duration of the transport.
Clause 16. Time for delivery. Delay
16.1 The time of delivery is specified in the Contract.
16.2 The Products shall be regarded as having been delivered, when AG gives the Purchaser notice that the Products are ready for delivery.
16.3 The Works shall be regarded as having been delivered on the day on which they are taken over in accordance with the provisions of clause 14.
16.4 If the Contract instead of a fixed date for delivery of the Products or for taking-over of the Works, specified a period of time within which the Products shall be delivered or the Works shall be taken over, such period shall start to run when the Contract is entered into and all agreed preconditions to be fulfilled by the Purchaser have been satisfied, such as official formalities, payments due at the formation of the Contract and securities.
16.5 If AG anticipates that AG will not be able to deliver the Products in time or to complete the Works in time, AG shall notify the Purchaser thereof in writing, stating: (i) the cause of delay and (ii) the time when delivery of Products or taking-over of the Works can be expected. Based on the information provided by AG under (i) and (ii) above, the Parties shall mutually agree on a final date for delivery of the Products or taking-over of the Works in question.
16.6 If delivery of the Products or taking-over of the Works is delayed by a circumstance which under clause 23 shall be considered a case of relief, by an act or omission on the part of the Purchaser or his other contractors, or as a result of a variation resulting from amendments to laws, regulations or provisions applicable to the Products or the Works, or variations in the originally agreed scope of the Contract initiated by the Purchaser, the time for delivery shall be extended by a period which is reasonable having regard to the circumstances in the case. The time for delivery of the Products or taking-over of the Works shall be extended even if the reason for delay occurs after the originally agreed date for delivery or taking-over.
16.7 If the Purchaser finds that he will be unable to accept delivery of Products or taking-over of the Works at the agreed time or if delay on his part seems likely, he shall forthwith notify AG in writing thereof stating the reason for the delay and if possible, the time when he will be able to accept delivery of the Products or taking-over of the Works. If the Purchaser finds that he will be unable to accept delivery of the Products or taking-over of the Works at the agreed time, he shall nevertheless pay part of the purchase price which becomes due on delivery as if delivery or taking-over had taken place. AG shall arrange for storage at the risk and expense of the Purchaser. AG shall also, if the Purchaser so requires, insure the Products at the Purchaser’s expense.
16.8 If AG fails to deliver the Products or Works at the mutually agreed final date for delivery of the Products or taking-over of the Works and this is due to any reason for which AG is responsible hereunder, the Purchaser shall have the right to terminate the part of the Contract of Products or the Works which is delayed provided that such delivery is delayed with more than 45 (forty-five) working days. The foregoing shall constitute the Purchaser’s sole and exclusive remedies, and AG’s sole and exclusive obligations, for any late delivery of Products or Works.
Clause 17. Liability for damage to Purchaser’s property before taking-over
17.1 AG shall be liable for damage to the Purchaser’s property occurring before taking-over of the Works only if it can be proved that such damage was caused by negligence on the part of AG or anyone for whom he is responsible in connection with the performance of the Contract. AG shall, however, under no circumstances be liable for loss of production, loss of profit or any other consequential economic loss.
Clause 18. Defects
18.1 AG shall, in accordance with the provisions of this clause 18, remedy any defect in the Product or the Works resulting from faulty design, materials or workmanship, which appears within a period of 12 months as from the date of delivery of the Products or the taking-over of the Works. If the Products or the Works are used more intensely than agreed or could be foreseen at the formation of the Contract, this period shall be reduced proportionally. AG agrees to repair or replace at its own discretion such Products or Products that are part of the Works that after evaluation or examination by AG is found to be defective.
18.2 AG’s liability does not cover defects caused by circumstances, which arise after the risk has passed to the Purchaser. AG’s liability does not, for example cover damages caused by unintended use, misuse, abuse, incorrect or improper storage, installation, maintenance or repairs by the Purchaser or by persons not under AG’s supervision. Finally, the liability does not cover normal wear and tear or deterioration.
18.3 After AG’s receipt of a written notice from the Purchaser in accordance with clause 19, AG shall at its own discretion decide whether remedial work shall be carried out at the Purchaser’s premises or the Site or whether the Purchaser shall send the defective parts of the Product or the Product to AG for repair or replacement at AG’s premises. If AG decides that the defective parts of the Product or the Product shall be sent to AG, the expenses in connection with dismantling and mounting the defective parts of the Product or the Product shall be borne by the Purchaser. Insurance and freight must be paid by the Purchaser until it has been proven that the parts of the Product or the Product are defective. A description of the reason for returning the parts of the Product or the Product shall be prepared and enclosed by the Purchaser. Products or parts of Products returned shall be free of extraneous equipment.
18.4 Defective Products or parts of Products that has been repaired will be returned to the Purchaser, freight paid by AG and insurance, as per clause 15.2, to be paid and arranged by AG. For countries outside Europe, AG reserves the right to return the Product or defective parts of a Product by ship and will pay the freight to the port considered by AG to be the most convenient for the Purchaser. The freight over land from the port to the Purchaser shall be paid by the Purchaser. Defective Products or parts of Products, which have been replaced by AG, shall be at AG’s disposal and shall become the property of AG.
18.5 For such parts of Products or the Works, which have been replaced or repaired pursuant to clause 18.1 AG shall have the same liability for defects as for the original parts for a period of one year. For other parts of the Product or the Works, the warranty period mentioned clause 18.1 shall only be extended by the amount of time during which the Product or the Works could not be used due to a defect for which AG is liable.
18.6 Where successful remedial work has been carried out by the Purchaser or a third party upon prior written approval from AG, reimbursement of the reasonable and direct costs incurred by the Purchaser shall be in full settlement of AG’s liability for said defects.
18.7 If dismantling or reinstallation makes it necessary to establish access through or otherwise take measures affecting installations or equipment other than the Works, the labour and costs resulting therefrom shall be the Purchaser’s responsibility.
18.8 If AG fails to fulfil its obligation set forth in clause 18.3, the Purchaser may by written notice require AG to do so within a final time. If AG fails to fulfil its obligation within that time limit, the Purchaser may at his option:
(a) have the necessary remedial work carried out by a third party at AG’s expense, provided that the Purchaser proceeds in a reasonable manner; or
(b) demand a reduction of the agreed purchase price in proportion to the reduced value of the Product or the Works, provided that under no circumstances shall such reduction exceed 15 % of the purchase price; or
(c) where the defect is so substantial that it significantly deprives the Purchaser of the benefit of the Product or the Works, the Purchaser may terminate the Contract by notice in writing. The Purchaser is then entitled to a compensation of the direct loss suffered up to a maximum of 15 % of the agreed purchase price.
18.9 AG shall not liable for defects arising out of materials provided by, or a design stipulated or specified by the Purchaser, or resulting from defective preparatory work carried out by the Purchaser.
Clause 19. Notification of claims
19.1 The Purchaser shall notify AG of any defect of the Products or the Works immediately. Should the Purchaser not notify AG of the defects immediately, the Purchaser shall forfeit his right to raise a claim for remedies pursuant to clause 18.
19.2 In the event that the Purchaser has made such notification as mentioned under clause 19.1 and it turns out that no defect can be found for which AG is liable, AG shall be entitled to compensation for the work and costs incurred due to the notification.
Clause 20. Limitation of liability
20.1 Notwithstanding any other provisions of these General Conditions, AG’s total aggregate liability arising out of a delivery of a Product or Works, shall, apart from remedial action according to clause 18.1, not exceed 25% (twenty-five percent) of the price actually paid by the Purchaser for the Product or the Works (VAT, taxes and/or other duties excluded) which forms the basis of AG’s liability.
20.2 AG shall in no event be liable for the Purchaser’s or others loss of profit, loss of revenue, loss of production, loss of use, loss of goodwill, loss of time, loss of contract, loss of business or for any consequential loss or indirect losses in relation to the Contract, including indirect losses arising due to delays or defects in the Products or the Works sold.
Clause 21. Product liability
21.1 Subject to the limitations stated in this clause 21, AG is liable for product liability damage pursuant to the Danish rules on product liability in force at any time.
21.2 To the extent that AG is liable to pay compensation due to product liability, AG’s liability shall in any event be limited to direct loss. In no event shall AG be liable for operational loss, loss of production, loss of earnings, loss of profits, loss of savings, loss of data, loss of goodwill or any indirect loss or consequential damage.
21.3 AG’s product liability shall in any event be limited to DKK 10 million per calendar year.
21.4 To the extent that product liability is imposed on AG because of a third-party claim, Purchaser shall indemnify AG to the same extent, as AG’s liability is limited towards Purchaser in accordance with this clause.
21.5 Should a third-party file a claim for compensation pursuant to the above against either AG or Purchaser, the party in question shall without delay inform the other party of same.
21.6 The above limitations in AG’s liability shall not apply where AG has been guilty of gross negligence.
Clause 22. Intellectual Property Rights
22.1 Materials created, designed and/or manufactured by AG, i.e. trademarks, tradenames, packaging, art-work, printing, plates, photographs, films and photographs rollers, remain the property of AG, irrespective whether the material is invoiced separately to Purchaser, unless otherwise agreed in writing. The Purchaser shall treat the information as confidential and is not entitled to disclose, copy and/or pass on the information to third party without the AG’s prior written acceptance.
22.2 AG shall retain full ownership of all intellectual property rights including but not limited to copyrights, trademarks, designs, patents, etc. created, designed, acquired and/or otherwise obtained by AG. Unless otherwise agreed in writing, AG shall not be deemed to have assigned, transferred or otherwise granted any rights to any of such intellectual property rights to the Purchaser or any third party.
22.3 In the event of the Purchaser’s breach of clause 22.1, AG is entitled to claim compensation for its loss from the Purchaser. In addition, AG is entitled to obtain an injunction, without provision of security, against the Purchaser’s unlawful activities.
Clause 23. Grounds for relief (Force majeure)
23.1 In the event that a Party’s performance of any of its obligations under these General Conditions and/or a Contract becomes impossible or unreasonably onerous due to circumstances beyond its control which could not reasonably have been foreseen at the time of the conclusion of a Contract such as fire, flood, earthquake, explosion, strike, lockout, epidemics, terror, war, riots, currency restrictions and regulations or interventions of an authority (“Force majeure”) that Party may suspend its performance of the affected obligation until such time as the Party concerned, after the discontinuance of such Force Majeure, is again able to perform its obligations under this Agreement.
23.2 A Party relying on clause 23.1 shall immediately notify the other Party thereof in writing, specifying the nature of the Force majeure, the expected duration and submit all supporting evidence thereof. The Party relying on Force majeure shall notify the other Party immediately after the Force majeure has ceased to exist.
23.3 Regardless of what might otherwise follow from these General Conditions, neither of the Parties shall be entitled to terminate a Contract by written notification to the other Party in the event that the Force majeure exceeds a period of more than six (6) months.
Clause 24. Disposal of deliveries, miscellaneous
24.1 The Purchaser agrees to properly dispose of the deliverables after use is discontinued at its own expense in accordance with the applicable statutory provisions. The Purchaser shall release AG from any existing obligations to take return and/or dispose of the deliverables and indemnify AG against any third-party claims in that connection.
24.2 The Purchaser shall impose contractual obligations on third party merchants to whom it provides the deliverables stipulating that, once those third parties discontinue using the deliverables, they shall properly dispose of them at their own expense in accordance with applicable statutory provisions and that this obligation shall be imposed on any subsequent parties receiving the deliverables. If the Purchaser fails to impose contractual obligations on third parties to whom it provides the deliverables stipulating that they shall properly dispose of them and that this obligation shall be imposed on any subsequent parties receiving the deliverables, the Purchaser shall be obligated to take return of the deliverables once it discontinues using them at its own expense and shall dispose of them in accordance with applicable legal statutory provisions. AG shall be released from any claims of third parties.
24.3 Because of their classification as being exclusively for commercial use, in no event may the Purchaser provide the delivered Products to private third parties. AG’s claim to the assumption of duties/release by the Purchaser shall not become statute-barred before the expiration of two years from the final end of the use of the delivered Products. The two year period of the suspension of the expiration date shall not begin, at the earliest, until AG has received a written notice by the Purchaser of the end of use. The Purchaser is obliged to send this written notification to us immediately after termination of use. AG is entitled to demand proof of proper disposal by the Purchaser.
24.4 All taxes, fees and charges in connection with rendering performance outside Denmark shall be borne by the Purchaser and refunded to AG, where applicable.
24.5 All packaging, in particular transport packaging, shall not be taken back. The Purchaser is obliged to ensure that the packaging is disposed of properly at his own expense.
24.6 The Purchaser shall at its own expense procure the permits and/or export and import documents required for its use of the Products.
24.7 AG complies with the statutory provisions for the protection of personal customer data. Further information can be found in the data protection declaration here
Clause 25. Partial invalidity
25.1 If one or more of the terms and conditions in these General Conditions or any part of a term is deemed invalid, unenforceable, illegal or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall not be affected or diminished thereby.
Clause 26. Applicable law and disputes
26.1 These General Conditions and any subsequent Contract shall be governed by Danish law, with the exception of any conflict of law rules in Danish law.
26.2 Any dispute arising out of or in connection with these General Conditions and any subsequent Contract, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration administrated by The Danish Institute of Arbitration in accordance with the rules of arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced. The place of arbitration shall be Sønderborg, Denmark. The language to be used in the arbitral proceedings shall be English.
26.3 Notwithstanding clause 26.2, AG shall be entitled to refer any dispute to the ordinary Danish courts in which case the competent court shall be the Maritime and Commercial Court in Copenhagen.
Version 3.0: 27 April 2020
Software License Terms and Conditions
Art. 1 Scope of application
- These License Terms and Conditions apply to the agreement entered into by and between us (“AGRAMKOW” or “Li- censor”) and the End User (“Licensee”) concerning the use of standard AGRAMKOW software and programs from third-party producers (the “Software”) (hereinafter referred to as “the Agreement”).
- Any license terms and conditions of the Licensee in departure from those mentioned herein shall not become part of the contractual content, even if we do not explicitly raise an objection or if we make delivery to the Licensee in full awareness of opposing or deviating terms and conditions without reservation.
Art. 2 Deliverables and license rights
Unless otherwise agreed, we shall make the Software available to the Licensee along with documentation in electronic form either embedded into the software, on data storage media or via down- load. The Licensee shall install and configure the Software itself. We are under no obligation to provide any installation, training, support, maintenance, updates or upgrades. Such services may be contractually agreed on a separate basis.
(1) The following rights of use are granted to the Licensee:
a) Programs sourced from third-party producers
Programs from third-party producers are subject to the licensing terms and conditions of such producers. This also applies to open source licenses if a software component is subject to an open source license. Unless the obligation to provide license terms and conditions and other mandatory disclosures arises from the license in any event, we shall make terms and conditions of third-party producers available to the Licensee if requested by the
b) AGRAMKOW Software
The Licensee receives the simple, non-transferable, unrestricted and non-exclusive right in terms of time to use the software and the relevant documentation from the time when made available. In this context, the respective license type comprises the following scope of use:
aa) In the case of hardware related licenses, the Licensee is entitled to install and use the software on the computer(s) for which he or she received the license key.
bb) In the case of a user related license, the right of use is restricted to the number of full client concurrent users specified in the Agreement, i.e. the right of use may only be exercised by the maximum number of users specified at the same time.
cc) In the case of a named user license, only the persons listed by name in the Agreement shall be entitled to simultaneous use of the Software.
(2) Any copyright notices and trademarks and other legal reservations, serial numbers or other features may not be deleted, altered, rendered illegible or suppressed and must always be assumed and included when making backup copies.
(3) In particular, the license to use the Software does not extend to include the right to edit, translate, lease and lend or disseminate it, the right to playbacks (in public) and online availability to third parties outside the Licensee’s organization; in addition, the license does not extend to include the right to copy the Software unless this is necessary for agreed purposes or for the creation of backup copies. The use of the Software in outsourcing, service bureau or application service provider (ASP) operation and the like is not permissible. The transfer of the rights of use to third parties is not permissible unless such third parties are business associates of the Licensee commissioned by the latter who need access to the Software in order to carry out their mandate and for operating purposes of the customer, with such use being exclusively confined to screen access and only in connection with the use by the Licensee.
(4) The Software may be made available to third parties only in a uniform manner and against indication of such use being granted in writing. The Licensee must fully and finally abandon its use of the Software and also surrender all copies to the third party or destroy them. In addition, these Licensing Terms and Conditions must also be imposed on any such third party.
(5) The Licensee is not entitled to delivery and use of the source code of the Software and the source code documentation. The Licensee is not allowed to decompile or disassemble the Software or to obtain or redevelop the source code in some other manner by reverse engineering; Section 69e of the German Copyright Act shall remain unaffected in this regard.
Art. 3 Duties of cooperation, inspection and raising complaints
(1) The Licensee shall appropriately prepare its work environment for deployment of the Software, in particular by making competent employees, IT systems, data and telecommunications systems
(2) Claims for defects presuppose that the Licensee duly met its obligations of inspection and raising complaints pursuant to Section 377 of the German Commercial Code (HGB).
Art. 4 Entitlement to information / license audit
The Licensee shall duly keep a track record of Software use, in particular of the authorized users and installation sites as well as the hardware and software environment, and shall provide us with the relevant information upon request.
The Licensee hereby agrees to AGRAMKOW being entitled to commission own employees or independent third parties, each of whom is committed to secrecy, with the review (including a manual audit and/or electronic methods) of recordings, systems and plant & equipment of the Licensee for the purpose of confirming that the installation and use of the Software by the Licensee is in conformity with the provisions concerning valid licenses from AGRAMKOW. The Licensee shall make all records and information requested by AGRAMKOW available within 30 days following receipt of a corresponding request. AGRAMKOW shall assume the costs of such review unless the latter reveals a substantial contractual violation.
Art. 5 Claims by Licensee in the event of legal defects
(1) We undertake to make the Software (including the documentation) available free of any rights of third parties that would militate against the use of the Software in contractual
(2) In the event that third parties assert such rights, AGRAMKOW shall defend the Software against the rights asserted by third parties. The Licensee shall notify AGRAMKOW of the assertion of such rights by third parties without delay and confer all powers of attorney and authorizations on AGRAMKOW that are necessary to defend the Software against the rights asserted by third
(3) In the event of any legal defects, AGRAMKOW shall be entitled, at its discretion,
a) to adopt suitable measures to remedy the rights of third parties impairing the contractually sound use of the Software or to prevent the assertion of such rights, or
b) to modify or replace the Software in such a manner as to prevent any rights of third parties no longer being violated if and to the extent that this does not impair the warranted functionality of the
If AGRAMKOW does not succeed in accomplishing this within a reasonable period to be stipulated by the Licensee, then the latter shall be entitled to assert claims for defects according to the following para. 4 and pursuant to Art. 6 paras. 4 to 8.
4) If the legal defect is based on the deficiency of a third- party program, the claims for defects shall initially be restricted to assignment of the claims for defects to which AGRAMKOW is entitled against the provider of the third-party program. AGRAMKOW shall make the information and records available that are necessary for the Licensee to assert the claims assigned against the producer of the third-party program. If a legal action by the Licensee against the producer of the third-party program likewise fails, then the Licensee shall directly be entitled to claims for defects against
5) Claims by the Licensee shall be ruled out if the Licensee is found to have violated copyright or, if such violation of copyright was caused by special parameters laid down by the Licensee, by an application not foreseeable by AGRAMKOW or by the fact that the Software was unilaterally modified by the Licensee and/or deployed together with software not supplied by AGRAMKOW.
Art. 6 Claims by Licensee for material defects
(1) AGRAMKOW is under an obligation to supply the Software (including the documentation) in its agreed condition. However, in the event that the Software is used by the Licensee in combination with third-party software, AGRAMKOW shall neither assume any liability for defects as regards the compatibility of such third-party software with AGRAMKOW’s Software nor any liability if the defects are attributable to any use not in contractual conformity or based on incorrect operation of the Software by the Licensee. Moreover, AGRAMKOW shall assume no liability for defects in the event that the Licensee does not use the assumed system configuration, in particular with regard to infrastructure, hardware, operating system and database.
(2) If the Software reflects reproducible material defects, then the Licensee can assert claims for defects against AGRAMKOW as set out in the following paragraphs. If the defect does not impair the Software’s functionality substantially or not at all, to the exclusion of further claims for defects AGRAMKOW shall be entitled to remedy the defect by supplying a new version or an update within the scope of its version and update planning program. The same shall apply to defects of third-party programs if such defects do not substantially impair the functionality or not at
(3) If the Software shows reproducible material defects, then the Licensee may, at its own discretion, opt for a subsequent remediation or the supply of a
(4) If the Licensee sets AGRAMKOW a further grace period after failed remediation following the first request, or if two remediation attempts or the supply of a replacement should fail, then the Licensee may rescind the Agreement or appropriately reduce the
(5) AGRAMKOW may refuse specific subsequent performance until the Licensee has paid the agreed remuneration less a portion that corresponds to the economic significance of the defect in question.
(6) Section 6 paras. 4 to 5 apply by analogy to reproducible material defects.
(7) All claims regarding complaints must be lodged with a readily understandable description of error symptoms in writing and, if possible, accompanied by written records to be prepared, hardcopies or other documents that serve to illustrate the defects in
(8) Claims by the Licensee on account of defects in the Software shall become statute barred one year after delivery or after the link was made available for download, unless we are strictly liable to an unlimited degree according to statutory regulations or the liability rules and regulations agreed by and between the parties.
Art. 7 Liability
(1) We shall be liable, also in the event of violations in the course of contractual negotiations, irrespective of the legal grounds involved (in particular, also to compensation for loss or damage not occurring to the subject matter supplied as such) without limitation, only in the following cases:
- gross negligence,
- culpable injury to life, limb and health,
- defects that we deceitfully failed to disclose,
- any violation of warranties assumed by AGRAMKOW for quality, properties and/or durability,
- cases of strict statutory liability (e.g. claims for damages in accordance with the Product Liability Act).
(2) Any damage caused by AGRAMKOW through simple negligence shall be compensated only if the violation of a major obligation is involved, the fulfillment of which only facilitates the due and proper execution of the Agreement in any case and that the Licensee is regularly allowed to rely on (cardinal obligations). In this case, AGRAMKOW’s liability is additionally limited to the extent of damage that AGRAMKOW typically had to expect in view of the facts and circumstances known to AGRAMKOW at such point in time and the nature of the contractual arrangements
(3) Whilst AGRAMKOW have taken reasonable steps to exercise its duty of care in our industry segment, software and other programming services cannot be provided absolutely free errors.
(4) The Licensee shall carry out appropriate and regular data backups, particularly in the form of backups available at any time for data restoration purposes. We shall be liable for the loss of data and its restoration only if such a loss would not have been avoidable by appropriate data backup measures being taken on the part of the Licensee. The Licensee shall bear the burden of proof for such data back- up measures being carried out on a regular basis. Liability for data loss or damage for which we are to blame is confined to the effort and expense that would have been necessary to restore the data from the data material backed up if the Licensee had done
(5) Compensation for pecuniary loss is excluded by the general principles regarding bona fides, such as in cases of disproportionateness between the extent of the order value and the extent of loss or
(6) Any further liability – for whatever legal grounds – in particular, also for compensation for loss or damage that did not occur under this Agreement, shall be
(7) We shall not be liable for the consequences of defects that do not give rise to any claims for defects pursuant to Art. 7 para. 1.
(8) The above mentioned disclaimers and restrictions also apply in favor of the employees, representatives, management bodies and vicarious agents of AGRAMKOW as well as in favor of other third parties commissioned by AGRAMKOW for contractual performance.
Art. 8 Confidentiality and data protection
(1) The Licensor and Licensee undertake, with respect to confidential information exchanged within the scope of these license terms and conditions, to treat such confidential information in strict secrecy for an unlimited period and not to allow or arrange for such information to be used within their own organization, including all affiliates, subsidiaries, branches, consultants, employees and all similar persons, enterprises or other natural or legal persons or used by themselves or by third parties in any other conceivable manner. Confidential information is made accessible internally only to those employees who need it to perform their obligations and who, in turn, are committed to secrecy.
Within the scope of these license terms and conditions, confidential information shall in particular be deemed to be – for example, but not exhaustively – any software including the source code, any trade secret, any information and all data or other not publicly accessible or confidential information regarding products, processes, know-how, design, formulas, algorithms, drafts, developments, research, computer programs or parts thereof (including the source code), interfaces, databases as well as other works protected under copyright law or any other piece of information in connection with business activities of the parties and their employees, consultants, licensees or other persons associated with such party who are announced as part of this Agreement or disclosed in some other manner as confidentially designated in written, electronic, physically embodied or oral form.
(2) The aforesaid duty of confidentiality shall not apply if and to the extent that the relevant information is proved to already have been in the public domain at the time of its dissemination, i.e. published or generally accessible or which became known after its transmission without any fault of the recipient or made known after its transmission to the recipient by a third party in a lawful manner without any restriction concerning confidentiality or use
Art. 9 Export control regulations
(1) Our performance under the Agreement as regards such software not covered by state export regulations is subject to the provision that we are issued with the necessary permits.
(2) The Licensee is under an obligation to observe the relevant national and international statutory provisions concerning the control of (re)exports of the merchandise and services governed by this Agreement. In this regard, in particular the Licensee shall neither export or reexport nor forward or transfer the licensed item or components thereof
– if authorized to do so according to this Agreement
– without being in compliance with the statutory provisions applicable to this end from time to time.
(3) If this is necessary to comply with the export control regulations, at AGRAMKOW’s request the Licensee shall make all information available without delay on the recipient, whereabouts and purpose of use of the licensed item and its individual components.
Art. 10 Final provisions
(1) If the customer is domiciled within the Federal Republic of Germany, then the place of jurisdiction shall be that of our corporate headquarters. We reserve the right to sue the customer at the latter’s statutory place of
(2) If the customer is domiciled outside the Federal Republic of Germany, arbitration proceedings will be held before the International Chamber of Commerce in Paris according to the ICC arbitration court rules. The decision is final. A ruling is to be handed down and justified by three judges. The cooperation of our insurer in accordance with the options available in the ordinary course of justice is possible. We reserve the right to bring an action before a statutory place of The laws of the Federal Republic of Germany shall be applicable, to the exclusion of all collision standards under private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) The requirement as to written form may be substituted by facsimile but not by electronic format pursuant to Section 126a of the German Civil Code (BGB) or text form in accordance with Section 126b
(4) Should any individual provisions of these licensing terms and conditions or contracts entered into on the basis of these licensing terms and conditions be or become invalid, either wholly or in part, this shall not affect the remaining provisions thereof
Software Maintenance Agreement
Version: August 06, 2020
1 Subject of the Agreement
(1) The subject of this Agreement is for us (“AGRAMKOW” or “we”) to provide maintenance services for the software products (the “Software”) listed in the Annex.
(2) Maintenance is to be carried out in accordance with the cur- rent state of the art; there are no predetermined maintenance schedules. The performances according to the agreement can also be assigned by us to third parties.
2 Scope of Performance
2.1 Software Maintenance
(1) Software maintenance includes ongoing software development and the assignment of the software improvements resulting therefrom, namely:
o Updates (error corrections for the current development version, in general not including performance or functionality expansions)
o Upgrades (new software versions, including performance and/or functionality expansions)
o Releases (upgrades with greater scope of functionality, identified by us only as a Release)
All other performances are to be billed separately, in particular the installation of software developments and the correction of disruptions in connection with other programs which were not provided by us.
(2) Software development always proceeds based on the two most recent effective software releases, respectively. We will only continue to support the three most recent releases.
2.2 Use of Software Developments by the Customer
(1) We agree to issue the software developments and associated documentation to the customer upon its market release. The customer will retain the same rights to further developments as it has to the originally-purchased software. This does not apply to developments we offer separately as new programs that are not related to the originally-purchased software.
(2) The customer will ensure that its data processing system (DP system) and system software, respectively, have the technical capacity required for the use of our software and developments thereof according to present regulations. In particular, a new release can require that the customer install an updated version of its system software. We will notify the customer in a timely manner as to when and which prerequisites will need to be implemented for use with the improved software.
(3) The customer will inform us in advance when it intends to install a new release of the required system software. The customer will provide us with a tailored test system for this purpose.
2.3 Fees for Software Maintenance and Payment
(1) The calculation basis for the software maintenance fee is the gross license value (GLV) of the software licenses purchased from us.
(2) Unless otherwise contractually regulated, our compensation must be paid annually in advance. Our prices are understood to be net and are subject to
(3) Payments must be made without any deductions to one of our designated accounts.
(4) The customer can offset payment or exercise a right of retention only if the counterclaim as such, as well as the value thereof, is uncontested or has been declared legally enforceable by a court of competent jurisdiction.
(5) Payments by the customer are due no later than 30 days after receipt of our invoice by the customer.
(6) The prices in the offer apply only to purchases of the full scope of the performances offered.
3 General Terms and Conditions
3.1 Term of Agreement
(1) The term is one year (base term). The term will extend by an additional 12 months (extension period) unless the Agreement is terminated in writing by a contractual partner 3 months prior to the expiration of the base term or an extension period.
(2) The right to termination without notice for good cause remains unaffected for both parties.
(1) The rights of the customer resulting from this software maintenance agreement are independent of any new guarantee claims arising from the software assignment agreement be- tween the parties. In this regard, the customer’s guarantee rights remain unaffected and continue to be in effect.
(2) Material defect claims regarding developments provided, un- less they are simply error fixes, are determined according to § 6 of our Software Licensing Terms and Conditions. Defect claims require that the customer has properly met its inspection and complaint obligations according to § 377 of the HGB [German Commercial Code]. Customer claims regarding legal defects are determined according to § 5 of our Software Licensing Terms and Conditions.
(1) We only assume unlimited liability for the following cases, even if the damages are due to violations during contract negotiations for any legal reason (including, in particular, damages not directly arising in the software itself being maintained):
- intentional damages
- gross negligence
- culpable injury to life, body or health
- defects that we have fraudulently concealed
- infringement of guarantees assumed by us relating to quality and/or durability
- cases of statutory liability (such as damages under the German Product Liability Act)
(2) Damage caused by us due to minor negligence will only be compensated if the violation involves a material obligation whose fulfillment is absolutely required in order to enable the proper execution of the agreement, and if the customer regularly relies on fulfillment of said obligation (cardinal obligations). In this case, the scope of our liability is further limited to damages which we have typically experienced and expect to occur, considering the circumstances known to us at the time of signing of the agreement and in light of the nature of the contractual agreements.
(3) In the process, it must be kept in mind that we are responsible for exercising that degree of care which is common in the industry, and cannot provide software and other programming services completely without errors.
(4) The customer will carry out appropriate and regular data security measures, in particular in the form of backups that are available and restorable at all times. For loss of data and recovery thereof, we are only liable if the customer's appropriate data security measures could not have prevented the loss. The customer must provide proof of these regularly-executed data security measures. The liability for data losses or damage caused by us is limited to the extent of remedy that would have been required from a proper data security system set up to restore the data from the secured data material.
(5) Compensation for property damage is based on the general principles of good faith, and is limited to cases where there is a disproportion between the order value and the loss amount.
(6) Any further liability - irrespective of the legal grounds -, particularly in relation to compensation for damage not arising from the software maintenance, is excluded.
(7) The above liability exclusions and limitations also apply to our employees, representatives, bodies and agents, and other third parties whom we employ for the purposes of contract fulfillment
(1) The contractual parties agree to maintain confidentiality about confidential information exchanged in connection with this Agreement for an unlimited time, and neither to exploit this in- formation or have the information exploited within the company
– including all associated companies, subsidiaries, branches, consultants, employees and all similar persons, companies or other natural or legal persons – nor to use the information itself in any way or have a third party use it. Confidential information is made accessible internally only to employees who require the information to fulfill their obligations and who are in turn obligated to maintain its confidentiality.
(2) With regard to this Agreement, information that is deemed to be confidential includes – by way of example, but not limited to – any and all software, including source code, all company secrets, all information and all data or other unpublished or confidential information regarding products, processes, know-how, design, formulas, algorithms, drafts, developments, research, computer programs or parts of computer programs (including source code), interfaces, databases and other copyrighted works or any other information regarding the business activity of the parties and employees, consultants, licensees or other persons associated therewith that is made known in the context of this Agreement and identified or that is shared and identified in any way as confidential in written, electronic, physical or oral form.
(3) The above obligation of confidentiality does not exist if and to the extent that the information in question can be proved to have already been made public or published or to have been made generally accessible, or to have become publicly known for reasons for which the recipient cannot be held accountable, or to have been made legally public by a third party after disclosure to the recipient and without restriction with respect to confidentiality or use.
3.5 Final Provisions
(1) If the customer’s headquarters are within the Federal Re- public of Germany, the court of jurisdiction is the court of our corporate headquarters. However, we reserve the right to file suit in the customer's court of jurisdiction.
(2) if the customer has its headquarters outside the Federal Re- public of Germany, then disputes shall be settled at the International Chamber of Commerce in Paris according to the ICC rules of arbitration. This ruling shall be final. It must be heard and decided by three arbitrators. Our insurer may participate in this process as normally allowed by law. We reserve the right to file suit at a lawful court of jurisdiction.
(3) The laws of the Federal Republic of Germany apply, to the exclusion of conflict-of-law standards and the UN Convention on Contracts for the International Sale of Goods (CISG).
(4) The written form can be replaced by a fax, but not the electronic form according to § 126a of the BGB [German Civil Code] or the text form according to § 126b of the BGB.
(5) If individual provisions of these Software Maintenance Terms and Conditions or of agreements concluded based on these Software Maintenance Terms and Conditions are or be- come ineffective in full or in part, the remaining provisions of the contract will be unaffected
Appendix 1. Software
Program maintenance is provided for the following software:
- PLIS Smart Suite
General Terms and Conditions for the Delivery of Services
Policy effective May 1, 2021
1.1 Unless otherwise agreed in writing between the Customer and Agramkow, the following general terms and conditions shall apply to Agramkow’s delivery of services to the Customer.
1.2 The Customer’s general conditions, customary practices etc., if any, shall not apply unless such conditions have been accepted in writing by Agramkow.
1.3 Any agreement shall consist of:
(i) an agreement indicating the parties to the agreement, the overall purpose of the agreement and the documents comprised by the agreement,
(ii) a number of appendices specifying the service, prices etc., and
(iii) these General Terms and Conditions for the Delivery of Services.
1.4 The agreement, any individual terms and these General Terms and Conditions for the Delivery of Services shall be interpreted together as mutually supplementary. In the event of any discrepancies between the documents comprised by the agreement, these shall be interpreted according to the order of priority indicated in Clause 2 above; however, such that individually agreed terms shall always take precedence over standard terms.
Service and scope of agreement
1.5 Agramkow shall deliver the service in accordance with the agreement. To the extent that the agreement does not provide sufficient instructions, the work shall be performed in a technically correct manner.
1.6 Any additional products, e.g. new technical units, acquired by the Customer from Agramkow after the conclusion of the agreement shall automatically be comprised by the agreement. Agramkow shall be entitled to increase the service charge as a result thereof.
1.7 Agramkow can demand changes to the nature, scope and time of delivery of the agreed service where such change is a consequence of new statutory requirements or amended public regulation. Agramkow shall be entitled to increase the service charge where such changes have a price-raising effect on the delivery of the service.
1.8 The service shall not comprise any remedying of damage caused by incorrect use of Agramkow’s products, repairs carried out by parties other than Agramkow, negligence on the part of the Customer or a third party or any other circumstances which cannot be attributed to ordinary use of the products.
1.9 The service shall not comprise any work in relation to third-party products, including installation as well as service and maintenance of such products.
1.10 Agramkow shall not establish direct contact with nor carry out work on behalf of consumers unless otherwise agreed separately with the Customer.
1.11 In some cases Agramkow processes information about the Customer’s customers in connection with the performance of the work.
1.12 Where this is the case, Agramkow acts as Data Processor, and acts only on instructions from the Customer. Agramkow shall implement appropriate technical and organisational security measures to protect the data against accidental or unlawful destruction, loss or alteration and against unauthorised disclosure, abuse or other processing in violation of applicable law on processing of personal data.
1.13 Upon the Customer’s request, Agramkow shall provide the Customer with sufficient information to enable the Customer to ensure that the technical and organisational security measures mentioned above have been implemented.
Payment and price adjustment
1.14 Payment shall be effected before the end of the agreed time for payment. In the event of late payment, interest shall accrue at a rate of two per cent (2%) per month.
1.15 Where the Customer disagrees with Agramkow on the size or the due date of the payment, the Customer shall raise an objection thereto without undue delay as such objection shall otherwise be forfeited. The uncontested part of the claim shall be paid irrespective of any objection.
1.16 Agramkow shall be entitled to adjust the service charge once a year, the first such adjustment coming into effect one (1) year at the earliest after the commencement of the agreement, by an amount corresponding to the increase in the net price index relative to the net price index at the time of the conclusion of the agreement or to the latest price adjustment implemented, respectively.
1.17 In the event of an increase in Agramkow’s total expenses as a consequence of outside changes in the cost level, Agramkow shall furthermore be entitled to adjust the service charge proportionately corresponding to the increase in the cost level.
1.18 Any travel expenses incurred by Agramkow, including travelling time spent, which are not included in the service charge shall be invoiced separately to the Customer.
1.19 Any expenses incurred by Agramkow as a consequence of the Customer implementing modifications/adjustments in the Customer’s or a third party’s system which necessitate modifications/adjustments in Agramkow’s system shall be invoiced separately to the Customer.
1.20 The Customer shall comply with Agramkow’s instructions concerning equipment delivered by Agramkow, including but not limited to instructions in manuals etc. as regards operation, maintenance and repair.
1.21 The Customer shall grant Agramkow full and unrestricted access to performing the service. Agramkow shall at any time have the right to demand access to inspecting any equipment etc. delivered by Agramkow, including with a view to determining and remedying the cause of a fault report. Where it is established that the Customer’s maintenance, use or other activity is not carried out correctly, the Customer shall immediately comply with Agramkow’s instructions thereon.
1.22 A contact person for the Customer shall be available and present when the service is performed at the Customer.
Breach of contract, complaint and remedial action
1.23 Where the service has not been performed in accordance with the agreement without this being attributable to the Customer’s affairs or other circumstances for which the Customer bears the risk, this shall be deemed a breach on the part of Agramkow.
1.24 In the event of payment not being affected by the Customer on time or where the Customer fails to fulfil its obligation to contribute to Agramkow’s ability to deliver the right service, this shall be deemed a breach on the part of the Customer.
1.25 Where a party wishes to claim breach of contract, such party shall notify the other party thereof without undue delay after the time when the breach was or ought to have been discovered.
1.26 If remedial action, additional delivery or replacement delivery can take place without material delay and without any other major inconvenience for the Customer, Agramkow shall have the right to take such action.
1.27 Agramkow shall not be liable for any operating loss, loss of profit or other indirect loss sustained by the Customer as a result of delayed or non-conforming delivery of services in accordance with the agreement.
1.28 In addition, Agramkow shall not be liable for the Customer’s loss of data as a result of breakdowns or similar, and Agramkow shall also not be liable for the Customer’s IT equipment such as hardware, software, networks and firewalls used for connection to the operations server.
1.29 Agramkow’s total liability under the agreement shall not exceed an amount corresponding to the annual service charge.
1.30 Agramkow shall not be liable in damages for any non-performance of its obligations, including delays and/or non-conformities, where such non-performance is attributable to circumstances beyond Agramkow’s control, including but not limited to industrial disputes (including global and local strikes and/or lockouts), fires, wars, uprisings, civil unrest, acts of terrorism, natural disasters, currency restrictions, any impact of computer viruses, worms or similar, attachment, import and/or export bans, breakdowns of or disruptions in public means of communication, supply or transport, including breakdowns of or disruptions in the public electricity supply, as well as any similar conditions affecting a subsupplier’s performance vis-à-vis Agramkow.
1.31 Force majeure shall also exist where circumstances as described in Clause 1.30 entail that Agramkow can only perform its obligations by incurring a disproportionate financial burden. Lack of funds shall not constitute force majeure.
1.32 In the event that the circumstance in question has prevented Agramkow from fulfilling significant parts of its obligations under the agreement for a period of more than one (1) month, the Customer shall be entitled to terminate the agreement by giving fourteen (14) days’ written notice for expiry at the end of a month.
Intellectual property rights etc.
1.33 Unless otherwise expressly agreed, all rights attaching to the deliveries, including trademarks, copyrights and design rights, shall belong to Agramkow.
1.34 Both parties undertake to keep confidential any and all information exchanged by the parties which, due to its nature, should be kept confidential, including but not limited to Agramkow’s drawings and specifications, and information about prices and quantities with the exception of those instances where the disclosure of such information is necessary in order for the party to fulfil its obligations under the agreement.
1.35 The confidentiality obligation of the parties shall apply both during and after the termination of the collaboration, but shall not apply to the extent that the information exchanged is or subsequently becomes publicly available, unless such public availability is the result of a breach of these General Terms and Conditions for the Delivery of Services.
1.36 Neither party shall have the right to assign its rights or obligations in full or in part without the prior written approval of the other party.
1.37 Notwithstanding the above provision, Agramkow shall, however, have the right to transfer its rights and obligations in full or in part to a subsidiary without the Customer’s approval.
1.38 Agramkow shall have the right to transfer its obligations under the agreement in full or in part to one or more subsuppliers. Agramkow shall be liable for such subsuppliers’ products, services etc. in the same manner as for Agramkow’s own affairs.
Amendments to the agreement
1.39 Any amendments or additions to the agreement, including the appendices to the agreement, shall only be valid if made in writing and signed by Agramkow.
Term and termination of the agreement
1.40 The agreement has been concluded for a period of twelve (12) months and shall subsequently be renewed automatically for twelve (12) months at a time unless terminated in writing by Agramkow or the Customer subject to at least three (3) months’ prior notice for expiry at the end of a twelve-month period.
Cancellation of the agreement
1.41 In the event of material breach of the agreement, both parties shall be entitled to cancel the agreement without prior notice.
1.42 Material breach shall not exist as long as remedial action, additional delivery or replacement delivery is possible in accordance with Clause 1.23.
1.43 Both parties shall be entitled to cancel the agreement without prior notice in the event of significant changes in the scope of the service as a consequence of external influences such as new legislation, industry regulations etc.
1.44 The parties shall seek to settle any dispute arising out of the agreement, including disputes relating to the existence or validity of the agreement, through mediation by The Danish Institute of Arbitration in accordance with The Danish Institute of Arbitration’s rules thereon applicable at the time the request for mediation was submitted.
1.45 Mediation shall not preclude a party from instituting arbitration proceedings in accordance with the provisions set out below or from taking other legal steps in relation to the dispute arisen.
1.46 If the mediation ends without the dispute having been settled, the dispute shall be settled by arbitration by The Danish Institute of Arbitration in accordance with The Danish Institute of Arbitration’s rules thereon applicable at the time the arbitration proceedings were instituted.