General terms and conditions
for Fremco Service Agreement
BELOW IS THE GENERAL TERMS ANS CONDITIONS FOR A FREMCO SERVICE AGREEMENT.
VALID FROM JANUARY 1, 2023
1.1. These General Terms and Conditions apply to all offers, orders, and order confirmations regarding Fremco Service Agreement, unless otherwise agreed, in the relationship between Fremco A/S and the Customer. The General Terms and Conditions are mutually binding on Fremco A/S and the Customer, unless otherwise expressly agreed. Fremco A/S is not bound by any of the Customer’s conditions differing from these General Terms and Conditions, unless such conditions have been agreed in writing between Fremco A/S and the Customer. Should Fremco A/S have failed to object against any such conditions of the Customer, Fremco A/S is still not bound to them.
1.2. The Service Agreement covers the machine serial number provided by Fremco A/S (plate found mounted on the machine).The Agreement does not cover any other machines or parts not attached to this machine.
2.1. Workday (applicable workdays in Denmark less weekends and public holidays) – means a day when Fremco A/S is open for business (other than weekends and public holidays).
2.2. Customer means the Company and person signing up for the Agreement.
2.3. Fremco means Fremco A/S.
2.4. Agreement Payment means the payment(s) made by the Customer for signing up for the Fremco Service Agreement.
2.5. Agreement Fee means the annual or full payment for Fremco Service Agreement.
2.6. Wear and Tear Parts are defined as helping tools which are not a fixed part of the machine, e.g. chains, drive wheel, chain support rails, cable seals, batteries, adaptor plates, chain wheel bearing, chain wheel for hydraulic motor, etc. (request a list of wear and tear items from Fremco for the specific machine).
2.7. Agreement Period means the period of the Agreement as set out in the agreement by Fremco, including any extended period if the agreement has not first been terminated.
2.8. The Agreement means the entire contractual basis between the Customer and Fremco, including these General Terms and Conditions.
2.9. Agreement Payment Terms refer to annual or full payments falling due in cash in the coming period. A period is defined as a full year of Agreement at a minimum, starting from the 1st day of any month for the following 12 month period.
2.10. The Machine means the specific machine comprised by Fremco Service Agreement. The specific machine is identified based on the machine serial number provided by Fremco (plate found mounted on the machine) and specified in the invoice.
3. FREMCO’S PERFORMANCE
3.1. Fremco will pay the expenses of an annual standard service and the service kits required to ensure that the Machine is fully functional again, apart from Wear and Tear Parts, which are at the Customer’s expense. The Agreement also covers repair of the machine in case of malfunction as long as the machine has not been misused or damaged due to gross negligence. Any repair cost, not covered by warranty, will be invoiced to the Customer.
3.2. If the Machine is non-functional, the Customer shall forthwith complain to Fremco, who must initiate service without undue delay, when the machine is at Fremco’s disposal. If the Customer decides to lend a machine, such a machine remains Fremco’s or Fremco Service Center’s property, and the Customer shall take out insurance on the loan unit while in the Customer’s keeping. The Customer is obligated to return the loan unit in the same state and condition as on receipt thereof, apart from wear and tear. If the Customer fails to do so the Customer will be charged the repair costs.
3.3. On Fremco’s demand at no less than 60 days’ prior notice, the Customer shall place the Machine at Fremco’s disposal in order for Fremco to initiate service.
3.4. Fremco may choose between performing service at its own premises (in that case, Fremco may decide the specific place of repair) or performing service at the Customer’s premises where the Machine is being used. Fremco is entitled to have the service performed by a certified sub supplier.
3.5. If the Machine needs to be taken to Fremco or an appointed Service Center for service, the Customer shall order and pay for the turn and return transport, including any transport insurance.
3.6. Should Fremco’s service be inadequate, the Customer shall immediately complain to Fremco, who must implement measures within a reasonably time for the purpose of remedying any such inadequacy.
3.7. In the absence of a specific agreement, the Customer can only sign up for a Fremco Service Agreement in connection with the purchase of a new machine from Fremco.
3.8. Notwithstanding the above, any loss or damage to the Machine caused by intent, gross negligence or other non-compliance by the Customer is exempted from coverage under this Agreement. Claims caused by incorrect usage of the Machine or by use not being according to the operating manual, maintenance guide, Fremco e-learning, or current regulations is not covered by the Agreement.
3.9. Fremco retains the right to adjust the Agreement Fee at one month’s prior notice.
4. CUSTOMER’S PERFORMANCE
4.1. The Customer acknowledges that the Customer has read and understood the conditions for working with Fremco fiber blowing equipment. Further, the Customer ensures that the Equipment is operated only by a qualified and competent person, duly instructed according to Fremco’s manuals and recommendations, as set out in Fremco’s operating manuals, instructions and safety warnings. Any non-observance thereof will result in a lapse of all rights under this Fremco Service Agreement.
4.2. Unless otherwise stated, rates quoted are for an annual or full Agreement Period. Fremco Service Agreement commences on the day when the Customer signs up for the Agreement.
4.3. The Agreement Fee must be paid at the beginning of the Agreement period and be invoiced in advance. The term of the Agreement must be for the chosen period and a minimum period of 1 year. Annual periods are extended automatically unless the Agreement has been terminated in advance.
4.4. If the Customer fails to make any payment to Fremco under the Agreement by the due date for payment, then, without limiting Fremco’s remedies under these General Terms and Conditions, the Customer shall pay interest on any such overdue amount at the rate of 2% per month, or in such case, limited to the maximum lawful rate. Interest accrues on a monthly basis from the due date until actual payment of the overdue amount, whether before or after any reminder. The Customer shall pay interest together with the overdue amount.
4.5. All amounts due under the Agreement are payable in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.6. It is a condition for the Customer’s right to obtain the privileges under the Agreement that the Customer:
(I) At its own expense and at all times during the Agreement Period keeps and maintains the Machine in a good and substantial state and condition in order to keep it as fully functional as it was on the commencement date of the Agreement (fair wear and tear only accepted).
(II) Uses the Equipment only for the purpose for which it was designed to operate in a careful, prudent manner and in accordance with the directions for use. The Customer shall not perform or allow any person to perform any work in or upon or make modifications, changes, alterations or repairs in respect of the Machine, other than routine daily maintenance.
(III) Complies with all laws, regulations, rules or ordinances of lawfully constituted authorities relating to the possession, use, storage and transport of the Machine, and, where applicable, obtains any possible authorizations for use inside or outside the EEA (European Eco-nomic Area).
(IV) Keeps Fremco fully informed of all material matters relating to the Equipment.
4.7. Fremco reserves the right to request proof of any such fulfilled obligation prior to the commencement of or during the Agreement Period.
4.8. The Customer shall allow Fremco or its representatives to inspect the Equipment at all reasonable times and for such purpose to enter upon the site or any premises where the Machine may be located, and shall grant reasonable access and facilities for such inspections.
5. PERIOD OF AGREEMENT
5.1. The Agreement Period is set out in the Agreement for new machines up to a maximum of five (5) years after purchasing date. The Agreement and warranty can be extended beyond 5 years only upon acceptance of Fremco, if the Agreement is not terminated prior to the expiry of the Agreement, counted from the 1st day of any month.
6.1. Fremco’s liability to the Customer is limited to liability for any direct loss suffered by the Customer. Consequently, Fremco is exempted from liability for any indirect loss, loss of profits, etc., including but not limited to:
• Loss of revenue
• Loss of business
• Indirect or consequential loss or damage, in each case, howsoever caused, even if foreseeable
• Incorrect operation (i.e. incorrect hydraulic powerpack, opening machines without acceptance from Fremco or from an approved Service Centre, etc.).
• Corrupting the software through uploading of external non-Fremco programmes
• Replacement if the Machine is beyond repair
• Loss, theft or vandalism
6.2. The Customer is in no event entitled to advance any claim of any kind, whatsoever, against Fremco with reference to the Down Period.
6.3. Fremco is entitled to cancel the agreement or suspend delivery under this agreement and is free of responsibility for any missing, incomplete or late delivery in whole or in part due to circumstances beyond Fremco´s reasonable control. Such as riots, civil commotion, war, terrorism, fire, government regulations, strikes, lockouts, slowdown, lack of transport, shortages, disease, pandemics, epidemics or delay in or failure of the deliveries from suppliers, accidents in product testing, or lack of energy supply and also any other happenings out of Fremco´s control. All the Costumers rights are suspended or terminated in such cases. Neither in case of cancellation nor delayed delivery, can Customer claim damages or make any claim against Fremco.
6.4. The Customer agrees to indemnify and hold harmless Fremco and its directors, officers, employees and partners, from and against all liability and expenses (including legal costs on a full indemnity basis), howsoever arising or incurring, in respect of:
• Loss of or damage to property of the Customer, whether owned or subscribed, arising from, relating to or in connection with the performance or non-performance of the Agreement; or
• Injury to, or death of any person employed or engaged by the Customer arising from, relating to or in connection with the performance or non-performance of the Agreement.
Further, the Agreement does not cover any impact damage, e.g. caused by dropping the unit.
6.5. Upon termination of the Agreement, howsoever caused, the Customer is precluded from advancing any claim of any kind, whatsoever, against Fremco, whether or not such claim may concern e.g., however without limitation, defects in the Machine, inadequacies in performed service, defects in an inserted service part, direct or indirect loss due to a defect, including loss of profits, unless the Customer has a legitimate claim under the agreement concerning purchase of the machine.
7.1. If Fremco makes an offer that does not include a specific deadline, the offer will lapse after 30 days from the date thereof.
8.1. All prices are quoted in Euro, excluding VAT, unless otherwise stated. The Customer is obligated until delivery to accept any price changes resulting from documented increased costs for Fremco due to changes in exchange rates, tariffs, taxes, duties, etc. related to the delivery.
9.1. Payment must be made no later than on the final date of payment stated in the invoice. If delivery is postponed due to the Customer’s conditions, the Customer is still obligated to make any payment to Fremco as if delivery had been made on time, unless otherwise agreed in writing with Fremco.
9.2. Late payments accumulate interest under applicable law. The Customer is not entitled to set off any counterclaims against Fremco without Fremco’s prior written acknowledgement and has no right to withhold any portion of the Agreement Payment based on counterclaims of any kind, whatsoever.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. All intellectual property rights belong to Fremco.
11.2. Concerning Software, if supplied, the following provisions apply: Software licenses or rights belong to Fremco.
11.3. Any software supplied by Fremco and used on only one computer system as well as the software and/or license to use it may not be copied.
12.1. In case of material breach of obligations on the part of either party, the other party is entitled to terminate the Agreement and claim compensation under the general rules of Danish law, unless otherwise provided or limited by these General Terms and Conditions.
12.2. Any failure to pay the Service Agreement Fee is considered a material breach and will lead to immediate termination of the Agreement without further notice.
12.3. Any failure by the Customer to take the machine to Fremco to be serviced on Fremco’s demand to that effect will likewise be considered a material breach.
12.4. The Customer’s breach or non-performance of clause 4.1 will be considered a material breach.
12.5. In case of termination of the Agreement, howsoever caused, the Customer forfeits all rights under the Agreement as from the time of termination.
12.6. In case of modifications, changes, or alterations in the Machine or in case of local repairs on the Equipment, the Agreement will be terminated.
12.7. Without affecting any other right or remedy available to it, Fremco may terminate the Agreement with immediate effect by giving written notice to the Customer if:
(i) The Customer fails to pay any amount due under the Agreement and remains in default for not less than five (5) Business Days after being notified to make such payment; if
(ii) The Customer commits a material breach of any other term of the Agreement, and either such breach cannot be remedied or (if such breach can be remedied) fails to remedy such breach within a period of five (5) Business Days after being notified to do so; if
(iii) The Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company of limited liability partnership) is deemed unable to pay its debts at the sole discretion of Fremco; if
(iv) The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors; if
(v) A petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company or otherwise); if
(vi) An application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, against the Customer (being a company or otherwise); if
(vii) The Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or if
(viii) Any event analogous to the former occurs in relation to any other legal jurisdiction.
12.8. Upon termination of the Agreement, however caused, the Customer shall pay to Fremco on demand all Agreement Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to these General Terms and Conditions.
12.9. Upon termination of the Agreement pursuant to these General Terms and Conditions or by any other repudiation of the Agreement by the Customer which is accepted by Fremco, without prejudice to any other rights or remedies of Fremco, the Customer shall pay to Fremco on demand a sum equal to the whole of the Agreement Payment that would be (but for the termination have been) payable if the Agreement had continued from the date of such demand until the end of the Agreement Period.
12.10. Termination or expiry of the Agreement will not affect any rights, remedies or obligations of Fremco that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of Agreement existing on or before the date of termination or expiry.
Fremco A/S may indicate special conditions of complaint for products and Repairs, which differ from the above. These will appear in the quotation and/or order confirmation.
13. ASSIGNMENT AND OTHER DEALINGS
(i) Fremco may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement and without notice to the Customer.
(ii) If the Customer is given notice of such assignment, it shall acknowledge receipt thereof in writing, and, if requested by Fremco, promptly execute and deliver to Fremco an estoppel certificate confirming the amount of any security deposit held because of the Equipment, the existence or non-existence of any default (by Fremco or the Customer) under the Agreement, and such other information as Fremco may reasonably request. Each such assignee or mortgagee will assume all the rights, but none of the obligations, of Fremco under this Agreement, and Fremco remains subject to such obligations. The Customer may never assert against any assignee and/or mortgagee any defense, counterclaim or set-off, which the Customer may have against Fremco. Notwithstanding any such assignment, Fremco and any assignee warrant that the Customer shall quietly enjoy use of the Equipment subject to the terms and conditions of this Agreement. This Agreement shall inure to the benefit of and be binding upon the heirs, successors and assignees of the parties hereto.
(iii) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement without the prior written consent of Fremco.
14. GOVERNING LAW
14.1. This Agreement is to be deemed entered into and performed in Hjørring, Denmark, being enforceable in Denmark, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims), is be governed by and construed in accordance with Danish law. Either party irrevocably agrees that the courts of Denmark, Hjørring, have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).