General Terms and Conditions of Sale effective as of 1st of April 2010
The following sales and delivery terms and conditions apply unless agreed otherwise in writing between Direct Hardware Supply ApS, hereafter called DHS, Jellingvej 26, 9230 Svenstrup J, Denmark and Purchaser.
1.1 The specified prices include packaging and Customs duties but not VAT or any other fees.
1.2 Unless otherwise agreed, the Purchaser bears the cost of shipping from the supply location and all relevant fees and charges.
1.3 DHS is entitled to change a price on the supply date as a consequence of the expiration of a campaign or in line with changes to exchange rates, purchase prices, customs duties, shipping and insurance rates or other conditions that are beyond the control and influence of DHS.
1.4 Price changes will appear on the DHS website or on information sent to customers. The price at the time of ordering will be used as a basis, regardless of the fact that the price may have fallen between the time of ordering and delivery.
1.5 Should DHS incur costs on behalf of the Purchaser, DHS may require compensation for said costs.
2.1. Unless agreed otherwise in writing, payment terms are prepayment.
2.2 Should payment not be made on time, interest will run at 2% per month from the invoice due date. DHS will issue an interest statement once a month. In addition, DHS may charge reminder fees, debt recovery fees and other fees in connection with collection of the purchase amount, in pursuance of the law concerning debt recovery operations.
2.3 Even if the Purchaser has lodged a complaint concerning a defect or flaw, he or she is still obliged to pay promptly.
3.0 The Purchaser’s financial situation
3.1 If the Purchaser’s financial situation, in the opinion of DHS, does not entitle them to the established payment terms, or if the Purchaser has failed to observe payment terms for previous deliveries, DHS is entitled to cancel unexecuted orders, unless the Purchaser, immediately after being informed thereof, pays for all previously supplied goods and pays in advance for as yet unexecuted orders.
4.0 Payment ethics
4.1 An invoice that has fallen due must be paid according to the open item principle, i.e. prompt payment of the entire invoiced amount including a clear reference to the invoice.
4.2 Should a dispute arise concerning an invoice (concerning the price, quantity etc.), it is the duty of the Purchaser to inform DHS order processor and the debtor’s accountant of this in writing within 8 days of the invoice date. Relevant, detailed documentation and names of any DHS personnel who have been involved must be enclosed. The Purchaser is not entitled to withhold payment of an invoice, either in full or in part. Should a situation such as this arise, DHS is fully entitled to 2% interest per month in the period from the due date until payment is made, regardless of the type of dispute, in accordance with item 2.
5.0 Proprietary rights
5.1 DHS retains the proprietary rights to the goods that have been sold until payment has been made in full.
5.2 DHS may request that the Purchaser insures the goods that have been sold with a recognised insurance firm, including cover and conditions approved by DHS.
6.0 Offer, acceptance and order confirmation
6.1 Unless otherwise specified, an offer is only binding for DHS when it is accepted via return of post or email, within 5 days of the date stamped on the DHS offer.
6.2 DHS reserves the right not to sell a product.
6.3 Should the order confirmation deviate from the Purchaser’s order with regard to additions, reductions or conditions, and the Purchaser does not wish to accept these changes, this shall be communicated in writing and within two days to DHS. Unless this is done, the order confirmation issued by DHS applies.
7.0 Conditions concerning goods that are out of stock
7.1 Orders are accepted and offers issued by DHS for goods that are not in stock based on the possibility of obtaining the relevant products. Each offer is subject to changed decisions concerning import and export of goods. Provided that these conditions are realised, DHS is entitled to recall the offer, without this entitling the entity receiving the offer to make any kind of demand.
7.2 Correspondingly, statements made in the offer apply to orders accepted by DHS.
8.0 Delivery time and delay
8.1 Each statement of delivery time is a rough estimate and is therefore approximate.
8.2 Furthermore, DHS is entitled to postpone the approximate delivery time, provided that the postponement thereof is necessitated by conditions beyond the control of DHS, cf. item 8 concerning force majeure.
8.3 Subject to item 5.1, when the stated or specified delivery period is substantially exceeded, the Purchaser is entitled to cancel the purchase; however, delay in a delivery does not entitle the Purchaser to compensation for direct or indirect loss, regardless of the cause thereof, including negligence. This applies only to goods categorised as A goods. For goods categorised as B & C products (cf. items 11.2 B and 11.2 C), software licences (D) (cf. item 11.2 D) and options, cancellation must be approved in advance by DHS and must be documented in writing.
9.0 Transfer of risk
9.1 The goods are delivered from the DHS warehouse
9.2 When goods are transported via an DHS carrier, the risk responsibility for the goods is transferred on delivery to the
destination, when DHS obtains insurance for the transport.
9.3 As standard, DHS provides transport at the expense of the Purchaser to the delivery address provided by the Purchaser.
9.4 Transport is paid on delivery. DHS will always strive to minimise the Purchaser’s shipping costs.
9.5 Shipping prices are calculated with reference to the standard prices according to currier service in play.
9.6 On payment of an extra charge, special transport may be arranged where necessary, e.g for removal personnel, cranes and unpacking.
10.0 Force majeure
10.1 DHS is entitled to cancel Purchaser orders or postpones their realisations and is otherwise free from responsibility for any omitted, defective or delayed delivery that is wholly or partly due to circumstances beyond the control of DHS, such as an uprising, unrest, war, fire, public orders, strike, lockout, slow-down, a shortage of means of transport, scarcity of goods, disease, delay or omission in deliveries from suppliers, an accident in production or testing or a power outage. All Purchaser rights are suspended or removed on these occasions. In the case of cancellation or postponed realisation, the Purchaser may not apply for damages or make any other claim against DHS.
11.1 Within 1 month of the product being dispatched, DHS undertakes to replace or repair parts that have manufacturing defects provided that:
1. The Purchaser complains in good time.
2. Defective goods are returned to DHS.
3. Following an investigation, DHS establishes that the defects identified are due to faults in materials or implementation, do not result from poor treatment or storage, neglect, installation, repairs or changes undertaken by the Purchaser, and are not due to an accident.
4. DHS is not responsible for defects and flaws covered by a warranty issued by the manufacturer. If the manufacturer has established such an independent warranty, it is the situation according to this warranty that applies, regardless of the drawbacks this may involve in the eyes of the customer. DHS will help the Purchaser and provide directions concerning the warranty and arrangement of repairs for an individual manufacturer.
11.2 With the exception of situations covered byitem 9.1, DHS is not responsible for flaws in the delivered goods, regardless of the cause, including negligence. It should bespecifically noted that item 8.1 does not cover software, and DHS cannot be held responsible for defects in the software that is delivered.
11.3 If DHS does not undertake redelivery or repair, and on the condition that DHS is bound by Danish law to provide compensation, this compensation is limited to an amount equivalent to the cost of repairing the flaws in the delivered goods and not exceeding the agreed purchase sum.
11.4 On no occasion that directly or indirectly relates to the delivered goods, their use or DHS’s output in general is DHS responsible for indirect losses and consequential damages, such as operational down time, wasted costs, property or other consequential damages, including lost or corrupted data. DHS is thus never responsible for operational down time, profit-related losses or other indirect losses.
11.5 DHS is not responsible for defects in goods delivered that are due to errors or neglect on the part of DHS suppliers or are in any other way caused by the supplier. Where DHS may be entitled to take action against a supplier, DHS hereby transfers this claim to the Purchaser, in such a way that the Purchaser is obliged to make their claim directly to the supplier.
11.6 Otherwise, for products that are sold with user instructions, see specific obligations concerning exchange/repair.
11.7 The aforementioned limitation to the compensation amount applies regardless of the motivation for or formulation of the compensation claim, and thus also covers claims that are based on negligence or oversight.
11.8 Under no circumstances is DHS responsible for damages that are due to the Purchaser failing to fulfil their obligations.
11.9 DHS does not guarantee that the products delivered will operate without faults or operational down time, or that all software errors (if any) will be corrected.
11.10 On return of DOA (dead on arrival) or defective equipment, the warranty covers repairs or a replacement product based on an assessment carried out by DHS. If an equivalent product cannot be obtained, DHS shall replace the product with an equivalent capacity or credit the customer for the market price of a new or equivalent product.
12.0 Complaints, warranty etc.
12.1 Products are supplied with the warranties that the manufacturer supplies to DHS. The Purchaser may not refer to any other product guarantee for DHS.
12.2 The Purchaser is obliged to examine the product as soon as it is received. Visible defects and flaws and damage sustained during transport shall be reported to DHS in writing before 4 pm on the day the product is received. DHS cannot subsequently be held responsible for damage sustained during transport. In the case of damage to packaging, the words “on receipt” should be noted on the packing slip on delivery of the product. Claims must be presented in writing within seven days of receipt of goods. In the case of concealed defects, the complaints period is extended to fourteen days. 12.3 Should the Purchaser fail to inform DHS that they wish to plead a defect within fourteen days of the transfer of the object, they may not subsequently do so, unless DHS has undertaken to be responsible for the object for a longer period of time or has acted fraudulently.
13.1 Goods are only accepted for return after this has been agreed in writing. Returns must be sent in the unbroken and undamaged original packaging, with the original invoice number and date or a copy thereof, and the authorisation number for returning the product (RMA no.). RMA nos. are only valid for fourteen days.
13.2 DHS categorises all products relating to their returns policy as follows:
A. Standard product (a product in daily use). May be returned and 100% refund obtained.
B. Partially standard product (a product which is no longer in daily use, and will soon be replaced with a new model). May be returned and 26-50% of the price refunded. Category A and B products can be returned for credit within 8 days after invoicing if:
Number of products returned do not exceed normal stock profile DHS will make an assessment concerning this after receiving the product.
13.3 Returns are at the expense and risk of the Purchaser and a handling fee and transport costs are charged.
14.0 Addressee’s liability
14.1 When an offer or delivery from DHS is addressed to an actual individual, DHS is entitled to consider the relevant individual as the debtor, regardless of whether this individual operates in the form of a company.
15.0 Catalogues, descriptions etc.
15.1 Regardless of whether it originates with DHS or with one of its business connections, all information concerning weight, dimensions, capacity and technical data in a catalogue, description, brochure, advertisement etc., is considered to be supplied by DHS. Specific Purchaser requirements are only binding when they are specifically confirmed in writing by DHS.
16.0 Cancellation of an order by the Purchaser
16.1 For products in category A (cf. item 13.2), the Purchaser has the option of cancelling an order or postponing the delivery time thereof, under certain conditions and on payment of a special fee, provided that a written agreement concerning this has previously been made with DHS.
17.1 On request, DHS can provide configuration benefits subject to appropriate prices and the manufacturer’s guidelines. Configuration benefits implemented according to the Purchaser’s instructions or specifications, and that are not in accordance with the manufacturer’s guidelines, are implemented at the responsibility of the Purchaser. DHS does not provide any separate warranty for configured products.
18.0 Product liability
18.1 DHS is only responsible for personal injury occasioned by the supplied products if the injury is documented as being blamed on negligence on the part of DHS. DHS is not responsible for damages to real estate or personal property. DHS is not responsible for operational down time, lost earnings or any other form of direct losses. Where DHS may be responsible to a third party for a product, a DHS Purchaser is obliged to indemnify DHS for the liability of DHS, bearing in mind the limitations imposed by the three preceding items. The Purchaser is obliged to take action via the same court that is dealing with product liability proceedings against DHS Should a third party bring a claim for compensation against one of the parties with reference to the above, this party shall immediately inform the other thereof.
19.0 Licence rights
19.1 The sale by DHS of parts, components and/or materials does not entitle the Purchaser or the Purchaser’s customers to a licence for any patent or exclusive rights to any combination, machinery or process in which the sold parts, components or materials are or may be used.
19.2 Software licenses are sold according to the Software Vendor’s Terms & Conditions. DHS disclaim any compensation or claims regarding software licenses.
20.0 Patent and intellectual property rights
20.1 Should action be taken against the Purchaser because of the fact that products that have been supplied by DHS currently constitute a direct infringement of a Danish patent or intellectual property rights, DHS undertakes to indemnify the Purchaser against compensation claims relating to a judgement or settlement, and against the cost of any legal proceedings, provided that the following criteria are fulfilled:
1. The Purchaser must immediately notify DHS of the proceedings in writing.
2. DHS has sole management of the case and all negotiations concerning the case judgement or settlement.
3. The Purchaser agrees that DHS, at its own expense, can choose either to obtain the right for the Purchaser to continue using the supplied products, or to exchange/replace said products, in such a way that they no longer constitute an infringement.
20.2 Unless the criteria in item 20.1 are fulfilled, the Purchaser cannot make DHS liable for the above proceedings.
20.3 If it is not possible to fulfil any of the criteria listed in item 20.1, on grounds that DHS deems reasonable, and if the Purchaser agrees to return the products after DHS has requested this in writing, DHS will grant the Purchaser approval for the returned products equal to their depreciated value. A similar amount of depreciation is applied for each year of the product’s lifetime, and is fixed at all times by DHS.
20.4 DHS cannot be liable if products are designed to the Purchaser’s specifications, or if the infringement cannot be directly attributed to the supplied products, but rather to the Purchaser’s specific use thereof, including supplementation of and changes to the supplied products, or the product’s combination or use in conjunction with other products. Furthermore, DHS does not undertake responsibility for action taken after the Purchaser has become aware of the possible infringement. Any further liability on the part of DHS is ruled out and, in particular, DHS may not be made responsible for consequential damages.
21.0 Obsolescence of claims
21.1 Claims brought against DHS, regardless of their motivation, cannot be valid more than two years after delivery.
22.0 Partial invalidity
22.1 If one or more of the specifications in the current agreement are known to be invalid, illegal or impracticable, this shall not affect or devalue the validity, legality or feasibility of any other specifications.
23.1 Deviation from the above sales and delivery terms and conditions is only permitted following an explicit agreement between the parties in writing.
24.1 Any dispute between DHS and the Purchaser shall be decided in accordance with Danish law at the Aalborg court of law.
25.0 Electronic connection and exchange of data
25.1 DHS offers the Purchaser several types of electronic trading solutions, provided that the parties have agreed to enter into a mutual, loyal partnership. If the trading relationship does not reflect the value of the available electronic trading solutions, DHS reserves the right to limit the user’s access thereto, in full or in part.
25.2 Reseller Web (webshop) offers the Purchaser access via the internet to product information, stock details, news, campaign information and supplier links, as well as the opportunity to submit orders and obtain delivery information
25.3 Daily file exchange – A product file that is emailed to the Purchaser, containing details such as product text, supplier product no., FLT product no., a net price specific to Purchaser and the current opening stock balance.
26.1 Presales – DHS offers the Purchaser presales support in connection with the selection of equipment, dimensioning and/or configuration of large servers/network solutions. A task description is sent to the sales division. A proposed solution is offered, either in writing or over the telephone. Should the proposed solution, either in its entirety or a substantial part thereof, result in a realised sale between the Purchaser and an end user, the Purchaser is obliged to submit orders for this via DHS. Should paid services be involved, DHS will make the Purchaser aware of this prior to proceeding. 26.2 Aftersales – DHS offers the Purchaser technical assistance in conjunction with installation and correction of technical issues. Support is not provided to end users unless an agreement negotiating this is entered into. Where the configuration/software is not supplied by DHS, the Purchaser will be invoiced at the appropriate hourly rate (minimum of 1 hour).
27.0 Rates for fees and charges
27.1 Return fee of EUR 75 applied in connection with an approved, returned product.
28.0 Duration and termination
28.1 The standard terms and conditions are valid from the submission of the Purchaser’s initial order until DHS publishes new terms and conditions in writing. This may take place without warning, either in writing or on the DHS homepage.
29.0 Prohibition against re-exporting
29.1 Should the delivery include equipment that is subject to US export restrictions, issued by the US Department of Commerce, such equipment may not be exported/re-exported, without an approved licence, nor may it be resold to entities or persons included in the US Department of Commerce?s restrictions list, Table of Denied Orders, and nor, without special permission from the US Department of Commerce, may it be sold to or made available to entities, organisations or persons involved in nuclear activity or for use in nuclear applications or systems without a special licence.
30.0 Use of information given on website
30.1 When requesting a quote on the website DHS can choose to use information given by Purchaser/Requester to send e-mails directly to Purchaser/Requester.
30.2 Purchaser/Requester can choose to deny DHS to use the given information to send e-mails by unambiguously informing DHS of this.
30.3 Purchaser/Requester can always choose to unsubscribe from any e-mails by DHS, even after a quote request has been sent.