- These Unless otherwise specified in the text or unless it follows from the circumstances, the definitions below will apply in these Terms of Sale and Delivery:
- “Confidential Information” has the meaning set out in clause 11.1.
- “Covidence” means Covidence A/S, Company Registration (CVR) No 30 49 27 65.
- “Customer” means the company or undertaking which has placed an order with Covidence.
- “Due Date” has the meaning set out in Clause 8.2.1.
- “Embedded Software” means the standard software included in a Product.
- “IP Right” shall have the meaning set out in Clause 10.1.
- “Product” means a product which is the subject of an order placed with Covidence by the Customer, including any Embedded Software.
- “Purchase Price” has the meaning set out in Clause 8.1.1.
- “Recall” has the meaning set out in Clause 14.6.
- “Software” means the standard software tools provided by Covidence to the Customer as part of the Products for the purpose of such tools enabling the Customer to handle and manage recordings, including a tool to extract data from the recordings and the Products.
- “Terms of Sale and Delivery” means these Terms of Sale and Delivery including (any) appendices.
- These Terms of Sale and Delivery apply to all sale and delivery of the Products by Covidence, unless otherwise agreed in writing.
- The Products are intended for the use of governments and governmental authorities. Hence, the Products are not offered for sale to consumers.
- Notwithstanding the Customer’s references in orders, requests or elsewhere to its general terms and conditions of purchase or other standard terms and conditions, such terms and conditions shall in no event apply in relation to the sales quotations made for or sale and delivery of the Products by Covidence.
- All sales quotations from Covidence solely constitute an invitation to the Customer to make an offer by placing an order with Covidence.
- The Customer’s orders are not binding for Covidence unless and until Covidence has issued a written order confirmation to the Customer.
- Subject to these Terms of Sale and Delivery, Covidence hereby grants to the Customer a non-exclusive, perpetual, revocable, non-transferrable right to use the Em-bedded Software and Software and any material related thereto provided by Covidence. For the purpose of this Clause 4.1.1, “use” shall mean the rights to use the Embedded Software, the Software and any related material as intended or contemplated, including any additional information provided by Covidence, on these Terms of Sale and Delivery.
- The Software may be provided by Covidence either by physical media or by download from Covidence‘s online customer portal to which the Customer may be granted access.
- The Customer shall refrain from using the Embedded Software in violation of applicable law, and the Customer may not – with the exception of necessary integrations provided by Covidence – attempt to interact with the system underlying in the Embedded Software, or modify, create derivative works of, adapt, translate, reverse engineer, decompile, or otherwise attempt to discover the source code in the Embedded Software (save as permitted by law).
- Unless otherwise agreed in writing, Covidence delivers the Products Ex Works Incoterms 2020, and the risk passes to the Customer in accordance herewith.
- After an order confirmation has been issued, the time of delivery will be stated in an email with a specific date or within a fixed period. Covidence reserves the right to change the time of delivery if all information from the Customer or a third party required in order to execute the order has not been communicated to Covidence within reasonable time prior to the time of delivery. Reservations are also made in relation to delay on the part of Covidence’s suppliers.
- Covidence reserves the right to make partial deliveries, unless otherwise agreed in writing.
Acceptance of the Products – Damage etc.
- The Customer must carry out thorough and adequate inspection of the Products delivered upon receipt. The Customer must immediately and no later than on the day of delivery notify Covidence of any visible damage, otherwise the Customer cannot raise a claim in this respect.
- In case of any damage which is not apparent, the Customer must notify Covidence thereof no later than 5 (five) days after delivery, otherwise the Customer cannot raise a claim for such damage.
- In case the Customer claims that Covidence has not delivered the ordered amount of Products, or that Covidence has not delivered the Product(s) actually ordered, the Customer must notify Covidence thereof no later than 5 (five) days after delivery, otherwise the Customer cannot raise a claim in this respect.
Delay due to the Customer’s Circumstances
- If the Customer is unable to or becomes aware of circumstances that will make the Customer unable to receive the Products, the Customer shall notify Covidence without delay stating the reasons for the Customer’s inability to accept delivery and the expected time of the cessation of such circumstances.
- Covidence is entitled to request that the Customer accepts delivery of the Products within a specified period of time. If the Customer does not accept delivery of the Products within this period of time, Covidence is entitled to cancel the order and to sell the Products to a third party. The Customer shall indemnify any costs incurred by Covidence related hereto.
- Nothing in these Terms of Sale and Delivery or any sales quotations, order confirmations etc. from Covidence shall be construed or deemed as a warranty in relation to the Products. Any Embedded Software and Software are supplied to the Customer “as is”. In particular, Covidence excludes and disclaims any warranty that the use of the Embedded Software and/or the Software will be uninterrupted or free of defects or that defects will be rectified. Unless otherwise agreed, including special quality requirements, all Products will be delivered as a general commodity and without any liability for special quality requirement.
- To the fullest extent permitted by applicable mandatory law and subject to Clause 12, Covidence provides no and disclaims all express or implied warranties in relation to the Products, the Embedded Software and the Software provided under these Terms of Sale and Delivery, including those of merchantability or fitness for the Customer’s particular purposes. Consequently, the Customer is liable for ensuring that the Products are suitable for the Customer’s needs and/or that the Products have the necessary special quality requirements (if any).
- Covidence’s standard packaging is included in the Purchase Price.
- The Customer must not change, remove or delete the labelling of the Product and must not delete warnings, markings, notices or characteristics which are a part of or stated on the Product.
- The purchase price for the Products is stated in the relevant order confirmation (the “Purchase Price”). The Purchase Price shall be paid strictly in accordance with the payment terms in Clause 8.2.
- The Purchase Price covers only the quantity of the Products and accessories which are specified in Covidence’s order confirmation.
- Unless otherwise expressly stated in an order confirmation, all payments shall be made after receipt of the invoice issued by Covidence within the days specified on such invoice (“Due Date”).
- The Customer is not entitled to set off any claim which the Customer may have against Covidence against any amount payable to Covidence under these Terms of Sale and Delivery, unless such claim has been accepted in writing by Covidence.
Late Payments and Calculation of Interest
- If the Customer fails to make any payment under these Terms of Sale and Delivery, the Customer shall from the Due Date of such payment pay interest of the unpaid amount at a rate of 1.5% per month. Such interest shall be payable without any further notice from Covidence to the Customer.
- If the Products are delivered partially pursuant to Clause 5.1.3, Covidence is entitled to withhold a delivery, if the Customer has defaulted on payment for one or more previous deliveries.
- Only limited by mandatory statutory provisions Covidence reserves the right of ownership in the Product sold until the full Purchase Price including any costs and interest incurred etc. has been paid to Covidence. The retention of title shall not affect the passing of risk in accordance with Clause 5.1.1.
- All intellectual property rights of any kind connected to the Products (whether or not they can be subject to registration and whether or not they are registered or are subject to an application for registration), including, but not limited to rights to inventions, discoveries, patents, utility models, trademarks, collective marks, guarantee marks, logos, de-signs, trade or business names, titles, domain names, copy-righted works, performances, photographic images, data-bases as well as rights in proprietary information, data, technology and know-how related rights, and all other rights or forms of protection of a similar nature shall be the exclusive property of Covidence (the “IP Rights”).
- Any of Covidence’s IP Rights, including the Embedded Software and the Software, shall be used only for the purpose of the Customer’s use of the Products. Any other purpose requires Covidence’s prior written permission.
- To the best of Covidence’s knowledge, none of the IP Rights related to the Products infringe any third-party rights. However, Covidence does not make any warranty to that effect. In the event that the Customer receives any notice or is otherwise informed of any claim, suit or demand on account of any actual or alleged infringement, unfair competition or similar relating to Covidence’s IP Rights in the relevant territory, the Customer must immediately notify Covidence thereof.
- For the purpose of these Terms of Sale and Delivery “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by or in respect of the other Party under or in connection with these Terms of Sale and Delivery, in particular all commercial, technical and operational information and know-how and any other information not generally known or reasonably ascertainable (whether orally or in writing or in any other medium, and whether or not the information is expressly stated to be confidential or proprietary or marked as such).
- Except as provided by this Clause 11 or as authorised in writing by the other Party, each Party undertakes that the receiving Party shall keep confidential all Confidential In-formation and will not, apart from that which is required by applicable law or by any court or other authority of competent jurisdiction, use any Confidential Information of the disclosing Party or disclose it to any third party, except for the purposes contemplated by these Terms of Sale and Delivery.
- The Parties shall ensure that their employees also observe this Clause 11.
- The restrictions contained in this Clause 11 shall apply indefinitely.
- In connection with the delivery of the Products, the Customer shall immediately carry out a thorough and adequate inspection of the delivered Products, see also Clause 5.2. If the Customer wishes to rely on a defect, the Customer shall immediately and within five (5) days of the delivery notify Covidence of any such defect in the Product. Should a defect in a Product, which the Customer could not have discovered at delivery, be ascertained at a later date, the Customer shall notify Covidence immediately hereof if the Customer wishes to rely on such defect. The Customer shall always inform Covidence about the nature of the defect. If the Customer fails to give such notice to Covidence, not-withstanding the fact that the Customer has or ought to have discovered the defect, the Customer loses its right to rely on the defect later. It is for the Customer to prove that the defect in the Product which the Customer claims was present at the time of delivery of the Product to the Customer. If no defect exists for which Covidence is liable, Covidence is entitled to compensation for the work and the costs which the complaint has imposed on Covidence.
- Remedy of defects in the Product will at Covidence’s option take place by repair of the defect or by a replacement delivery. The Customer is not entitled to any other remedy for breach and the Customer is consequently not entitled to damages or compensation for losses and costs which the Customer may incur in relation to repair or a re-placement delivery, including costs of mounting and installation of the Product delivered in replacement.
- The Customer must give notice of any defect in the Product delivered within 12 months from the delivery. Upon expiry of this 12-month period, the Customer shall no longer be entitled to raise any claim(s) in relation to the delivered Product. In relation to parts that have been replaced or repaired, Covidence will for a period of 12 months assume the same obligations that apply to the Product originally sold. However, Covidence’s liability for defects of any kind in the Product sold cannot be extended to more than 18 months from the original time of delivery.
- Covidence cannot in any case be held liable for production and operating losses, loss of profits or other indirect losses and consequential damage, including payment of liquidated damages or payment of other penalties, due to delay or defects in the Product sold unless the claim is due to Covidence’s willful misconduct or gross negligence.
- Covidence’s total liability cannot exceed the Purchase Price for the Product(s) which the liability is arising out of or related to.
- Covidence’s liability is exempt if the Customer or a third party on behalf of the Customer has made any changes or modifications to the Products sold without Covidence’s prior written consent.
- The rules under Danish law in force at any time will apply to product liability with the limitations of liability following from these Terms of Sale and Delivery.
- Covidence may only be held liable for personal injury caused by a Product if it is proved that the injury is a con-sequence of failure or negligence on the part of Covidence or others for which Covidence is liable.
- Covidence is not liable for any damage to real or personnel property caused by a Product after delivery has taken place. Covidence is further not liable for any damage to products produced by or stored with the Customer or to the Customer’s products of which a Product forms part.
- Covidence shall have no liability for any changes or modifications made to a Product by the Customer or a third party. Further, Covidence shall be without liability for any use of a Product conflicting or in non-compliance with the (i) documentation, (ii) specifications of the Product and/or (iii) other information provided by Covidence relating to the use of the Product.
- Covidence is not liable for production and operating losses or other indirect losses or consequential damage, including payment of liquidated damages or payment of other penalties, due to Covidence’s delivery of a defective Product to the Customer unless the Customer is able to prove that such claim is due to Covidence’s willful misconduct or gross negligence.
- If a Product delivered under these Terms of Sale and Delivery is found to be in breach of any relevant legislation or regulations, Covidence will decide whether a Product recall or any other action to prevent the distribution and/or sale of the Product is required as well as the type, extent, method of handling, arrangements for disposal of Product and all other particulars involved in such an action (“Recall”).
- If Covidence chooses to carry out a Recall, Covidence will reimburse the Customer for the direct, documented costs for transportation and handling incurred by the Customer in connection with the Recall. The limitation of liability set out in these Terms of Sale and Delivery shall also apply in relation to Covidence’s liability under this Clause 14.
- Covidence will notify the Customer as soon as possible where a Recall is required.
- Covidence is entitled to suspend performance of its obligations if such performance is impeded or causes an unreasonable hardship on Covidence due to any extraordinary circumstances beyond the reasonable control of Covidence including, war, terrorism, earthquakes, volcanic eruptions, lightning, storms, hurricanes, cloudbursts, fire, explosions, failure of public services, shortage of materials, delays in transport including shipping, shortage of energy, any strike, lockout or other form of industrial action, restrictions or significant legal or political changes laid down by governmental authorities or the European Union etc.
- Notwithstanding any other provisions of these Terms of Sale and Delivery, either Party is entitled to terminate an order with immediate effect by written notice to the other Party, if it is clear from the circumstances that the performance will be and is suspended under Clause 15.1 for more than three (3) months.
- Covidence is entitled to assign all rights and obligations in relation to execution of an order to a third party without the Customer’s acceptance.
- Covidence is entitled to use any subcontractors in order to manufacture and deliver the Products.
- Covidence is not responsible for any warranties, remedies etc. provided by any subcontractor which is not in accordance with these Terms of Sale and delivery.
- Covidence reserves the right to amend these Terms of Sale and Delivery from time to time. The current version of the Terms of Sale and Delivery can always be found on www.covidence.com.
- These Terms of Sale and Delivery are governed by Danish law, however, the Danish conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG) are to be disregarded.
- Any dispute arising out of the parties’ business relationship as governed by these Terms of Sale and Delivery and which cannot be settled amicably is to be brought be-fore the City Court of Copenhagen.
[Version 1.0, 11 February 2020]