1. Application
1.1 These general terms and conditions ("Terms & Conditions") apply to all contracts for the sale and delivery of products and spare parts and related services (both hereinafter referred to as "Offerings") between FREA Solutions ApS (CRN 15369000) ("FS"), and FS's customers ("Customer(s)"), unless full or partial derogation or modification is otherwise expressly agreed in writing and it can be asserted with certainty that the intention has been to derogate from the Terms & Conditions.
1.2 FS does not provide its Offerings for use in North America. Should FS become aware of, or suspect, that Offerings originating from FS, possibly via an intermediary, are intended for use in North America without FS's prior written consent, delivery will be refused.
2. Contractual basis
2.1 Whether this is done by email, telephone or the FS website, by placing their order or confirming an offer from FS, the Customer accepts the Terms & Conditions.
2.2 Special purchase conditions or specific requirements for Offerings on the part of the Customer, indicated in e.g. the Customer’s order or in the Customer's purchasing terms, are not binding for FS, unless FS has given its express written consent thereto.
2.3 FS’s employees are not authorised to enter into verbal agreements in addition to, or in contravention of, the Terms & Conditions.
2.4 When the Customer has accepted the Terms & Conditions once, the Customer is also considered to have accepted that the Customer's future agreements with FS are subject to FS’s Terms & Conditions in force at the time in question.
2.5 The Customer is made aware that FS may change the Terms & Conditions at any time, and the Customer is therefore encouraged to familiarise themselves with the Terms & Conditions whenever an agreement is entered into with FS.
3. Quotations, orders and order confirmations
3.1 Quotations are valid for 30 days from the date thereof, unless otherwise specified in the quotation. Acceptance of a quotation which is received by FS after the acceptance deadline is not directly binding for FS.
3.2 The Customer is bound by their order and by the Terms & Conditions, irrespective of whether the order is placed via email, telephone or the FS website. FS is not bound by the Customer's order until FS has confirmed the Customer's order by means of a written order confirmation.
3.3 FS aims to confirm or reject orders for Offerings to the Customer within one week after receipt of the order.
3.4 The Customer cannot change a pending order for Offerings without the written consent of FS.
3.5 If there are errors in FS’s order confirmation or if the Offerings specified in the order confirmation do not match the Customer's order and the Customer does not want to accept the discrepancy, the Customer must notify FS in writing within one week after receipt of the order confirmation. Otherwise, the Customer shall be bound by this.
4. Price, payment and retention of title
4.1 All prices are excl. VAT, customs duties and any other taxes and fees.
4.2 Unless the parties have agreed otherwise in writing, the Customer shall pay for the Offerings no later than on the day specified in the order confirmation or in the invoice.
4.3 If, for reasons for which FS has no responsibility, the Customer fails to pay an invoice for Offerings delivered on time, FS is entitled to charge interest on the amount due of 1% per month or part thereof from the due date and until payment is made.
4.4 If the Customer fails to pay an amount due within 14 days after receiving a written demand to do so, in addition to interest under section 4.3, at their own discretion FS has the right to: (i) cancel delivery of the Offerings to which the delay relates, (ii) terminate delivery of the Offerings which have not yet been delivered to the Customer, or demand payment in advance for this and/or (iii) apply other remedies.
4.5 The Customer is not entitled to offset the purchase price against claims relating to other legal matters, and neither is the Customer entitled to exercise a lien or refuse payment on grounds of delay, complaint or counterclaim regarding the specific delivery.
4.6 FS shall retain ownership of the delivered Offerings until payment has been made in full, including payment of any outlays, surcharges and interest (retention of title). Until the end of the retention of title, the Customer shall store the Offerings securely and separately so that they can be identified as FS’s property.
5. Delivery
5.1 Unless otherwise agreed in writing, FS shall deliver all Offerings ex works from FS's registered address (EXW, Incoterms®2020).
5.2 Any Offerings sold shall be delivered at the time stated in the order confirmation. Timely delivery requires the Customer to have duly met all agreed formalities or conditions. Subject to prior agreement with the customer, FS may choose to deliver before the agreed delivery date.
5.3 In the event of visible damage to the Offerings occurring in transit, the Customer must immediately complain to the carrier in writing, as a minimum by writing on the consignment note that the Offerings are only accepted with reservations. If transit damage was not visible at the time of delivery, upon discovering such damage the Customer must immediately, and within seven days of receipt, complain to the carrier in writing.
5.4 The Customer shall inspect all Offerings upon receipt. If errors or defects are detected which the Customer wishes to complain about, they must immediately inform FS in writing. If an error or defect which the Customer discovers or should have discovered is not immediately communicated to FS, the matter cannot be brought up at a later time.
6. Delay
6.1 If FS expects delays in the delivery of Offerings, the Customer shall be informed as soon as possible and, at the same time, notified of the reason for the delay and the new expected delivery time.
6.2 If, for reasons for which the customer is not responsible, FS fails to deliver Offerings within 7 days after the agreed delivery time, the Customer may cancel any order(s) affected by the delay by giving written notice to FS. In the event of late delivery, the Customer has no other rights and is thus excluded from making claims for compensation of any kind, including compensation for operating losses, consequential damages or other indirect damages.
7. Warranty and defects
7.1 FS warrants that new products and spare parts sold and delivered by FS comply with EU legislation at the time of delivery and are free of material defects in design, materials and performance for 12 months from delivery. For Offerings replaced under warranty, the warranty period is 6 months from replacement up to a maximum of 18 months from the original delivery. Any second-hand Offerings are delivered as seen at the time of delivery.
7.2 Services sold and delivered to the Customer by FS are executed correctly in terms of craftsmanship and comply with EU legislation at the time of delivery.
7.3 FS’s warranty does not cover wear parts and defects due to: (i) normal wear and tear, (ii) storage, installation, use or maintenance contrary to FS’s directions or customary practice, (iii) repair or modification performed by any party other than FS, and (iv) other matters for which FS is not responsible.
8. Complaints and remediation
8.1 Should the customer discover an error or defect during the warranty period and wish to complain about this, the Customer must, immediately and no later than 14 days after the discovery of the error or defect in question, notify FS. If FS is not notified of an error or defect immediately and no later than 14 days after the error or defect is discovered or should have been discovered, the Customer cannot bring up the matter at a later time. The Customer must provide FS with the information regarding a notified error or defect that FS requests.
8.2 Within a reasonable time after FS has received notification from the Customer of an error or defect and examined the claim, FS shall notify the Customer of whether the error or defect is covered by warranty. Upon request, the Customer must, at their own expense and risk, send defective parts to FS. If the error or defect is covered by warranty, FS shall bear the cost and risk for parts in transit to the Customer.
8.3 Within a reasonable time after FS has accepted with the Customer that an error or defect is covered by warranty, FS shall remedy the error or defect by, at FS’s discretion: (i) replacing or repairing the defective parts, or (ii) sending parts to the Customer with a view to allowing the Customer to perform replacement or repair.
8.4 The Customer has no rights in respect of errors or defects in products, spare parts and related services other than those expressly stated in this section 8. Complaints and remedies.
9. Product liability
9.1 FS bears product liability solely in accordance with relevant, applicable laws. FS is not responsible for product damage on any other basis.
9.2 If the Customer becomes aware that damage has been caused, or that there is an immediate risk that damage can/will be caused, by Offerings, the Customer shall immediately notify FS thereof. To the extent that FS may incur liability to a third party, the Customer is required to indemnify FS to the same extent that FS's liability is limited under this section. In this eventuality, the parties are obliged to accept the venue where the case is or might be brought by the third party.
10. Limitation of liability
10.1 Delivered Offerings are intended for use within aquaculture. Under no circumstances can FS be held liable for loss or damage attributable to Offerings being used for purposes other than intended, including outside aquaculture. The Customer shall indemnify FS to the extent that FS may incur liability for such loss or damage.
10.2 FS accepts no liability for the product's legality outside the EU.
10.3 Regardless of the basis on which a claim is made, and regardless of the degree of negligence, FS is not liable for indirect or consequential damages, such as operating losses, loss of time, loss of profits, consequential losses, loss of data or costs associated with the restoration thereof, loss of goodwill, loss of anticipated savings and the like.
10.4 Under no circumstances does FS’s liability cover damages which could not have been foreseen at the time of entry into the agreement.
10.5 To the extent that FS may incur liability to third parties, the Customer is required to indemnify FS to the same extent that FS's liability is limited under this section 10.
10.6 FS's total liability for any loss or damage (whether due to delay, advisory and/or defects), and unless FS's liability is specifically disclaimed, is limited in amount to the amount the customer has paid for the service (or lack thereof) on which the claim is based. Regardless of the size of the payment for the service, FS's total liability cannot in any event exceed [DKK 1,000,000.00].
11. Force majeure
11.1 FS’s obligations under the agreement are postponed by force majeure, which refers to situations beyond FS's control, including but not limited to, war, riots, terrorism, revolution, strike, lockout, labour shortages, interventions by government or public authorities, fire, natural disasters and natural conditions that make it impossible to fulfil the contract, bad weather, currency restrictions, import or export restrictions, interruption of normal communications, interruption or failure of energy and water supply, public data systems and electronic communication systems, prolonged illness of key staff, viruses, cyber terrorism, hacker attacks, the occurrence of force majeure with subcontractors or any other reason that FS had no way to control, avoid or expect.
11.2 Conditions at FS's subcontractors which mean that FS is unable to meet its obligations to the Customer, and which cannot be overcome without excessive costs to FS, are similarly considered force majeure.
11.3 If correct or timely delivery is temporarily prevented by one or more of the above circumstances, delivery shall be postponed for a time corresponding to the duration of the hindrance, with the addition of a reasonable period of time for normalising the situation. Delivery within the postponed delivery date is considered timely in all respects.
12. Intellectual property rights
12.1 FS shall have full ownership of all intellectual property rights concerning the Offerings, including patents, designs, trademarks and copyrights.
12.2 If, by final and binding decision, it is asserted that the delivered Offerings infringe third-party intellectual property rights, FS shall, at its own discretion and expense: (i) secure the Customer’s right to the continued use of the infringing Offerings, (ii) modify the infringing Offerings so that they no longer infringe, (iii) replace the infringing Offerings with others that do not infringe, or (iv) repurchase the infringing Offerings at the original net purchase price, minus 20% for each year passed since delivery. The Customer has no other rights as regards the Offerings’ infringement of third-party intellectual property rights.
13. Confidentiality
13.1 The Customer may not disclose, use or enable others to use FS's trade secrets or other information of any kind from or about FS which is not in the public domain.
13.2 The Customer may not unduly obtain or attempt to obtain knowledge or disposal of FS’s confidential information as described in section. 13.1. The Customer shall treat and store the information securely to prevent it from accidentally becoming known to others.
13.3 The Customer's obligations under sections 13.1-13.2 apply during the parties’ business relationship and indefinitely after cessation of the business relationship, regardless of the reason for termination.
14. Choice of law and venue
14.1 Any dispute arising between FS and the Customer shall be governed by Danish law. However, this choice of law does not include the rules of international civil law in Danish law.
14.2 The dispute shall be settled by the ordinary Danish courts with the Court of Herning as the first instance.
15. Miscellaneous
15.1 Should any part of the Terms & Conditions be deemed unlawful or invalid, and thus unenforceable, this shall not affect the validity and enforceability of the remaining Terms & Conditions.