GENERAL TERMS OF SALE AND DELIVERY
These General Terms of Sale and Delivery (“Agreement”) shall apply between Anritsu A/S (“Anritsu”) and the Customer to all sales and deliveries made by Anritsu to the Customer of equipment (Hardware), Software and services (collectively Products) unless otherwise specifically provided for in the written agreement between Anritsu and the Customer.
Unless accepted in writing by Anritsu, any indication to the contrary in the Customer’s order form and/or any reservation made in any document or otherwise advanced by the Customer shall be deemed to be null and void.
Quotations are valid for a period of 3 months, unless otherwise specified.
Where not otherwise expressly stated, all prices are DAP Anritsu's supply chain warehouse in Germany (Incoterms 2010) and exclude VAT, customs and other public dues, levies and taxes Imposed in Denmark or abroad. Unless otherwise agreed, packaging is included in the price.
Payment shall be made in DKK (or as otherwise agreed) and in the manner and at the time or times as specified by Anritsu.
In the event of delay of payment, the Customer shall pay an interest of 1.5% per month from the date stipulated for payment. Anritsu reserves the rights to withhold deliveries against existing and future orders until dispatched and invoiced deliveries have been paid in full.
Delivery/Risk of Loss/Title
Delivery of the Products shall be made DAP Anritsu's supply chain warehouse in Germany (Incoterms 2010). Time of delivery shall be stated in Anritsu’s order acknowledgement.
The risk of loss of and damage to the Products shall pass to the Customer upon DAP delivery of the Products.
The Products must be inspected by the Customer immediately upon receipt, and any defects discoverable on examination, which are to be claimed against Anritsu, can only be recognized if Anritsu is notified in writing immediately and at the latest within 15 days from receipt of the Products.
Title to Hardware shall pass to the Customer upon payment in full. Title to Software and documentation delivered hereunder will always remain with Anritsu or the relevant third party licensor.
Delivery of the Products shall always be subject to Anritsu obtaining the export licenses required for exportation of the Products and Anritsu receiving an End-User Statement from the Customer, if required, prior to shipment
Anritsu warrants (a) the Hardware to be free from defects in material and workmanship for a period of 12 months from date of delivery DAP Anritsu's supply chain warehouse, Germany, and (b) the Software to function substantially in accordance with the agreed product specifications for a period of 90 days from date of delivery DAP Anritsu's supplier premises in Germany. In the event of defects covered by the above warranty and arising during the applicable warranty period, Anritsu’s sole obligation shall be to repair or replace the defective item or media, at Anritsu’s option, when returned by the Customer on the Customer’s account and risk to the designated place of repair, in accordance with Anritsu’s authorisations and instructions. Returned Products must be accompanied by a statement or report fully stating the claimed defect(s), model and serial number of the Product and any other pertinent information concerning the defect.
Replaced or repaired Products will be returned to the Customer on Anritsu’s account and risk.
The warranty period for repaired or replaced Products (or parts thereof) will be the remainder of the initial warranty period or ninety (90) days from delivery thereof at the address specified by the Customer, whichever is longer.
Anritsu should be notified of possible defects immediately and not later than 15 days after such defects have come to the attention of the Customer and at the latest at the expiration of the applicable warranty period.
The warranty does not cover defects which are due to the Products not having been properly operated within the specified applications and environmental conditions or which are caused by faulty maintenance or incorrect installation from the Customer’s side, or which are caused by misuse, negligence, or accident, nor does Anritsu’s liability cover normal wear and tear or deterioration.
The warranty does not cover Products, which have been reverse engineered, altered or repaired without Anritsu’s prior written approval.
There are no warranties, express or implied, beyond those stated herein.
Anritsu shall not be under any liability for any failure to perform any of its obligations due to Force Majeure. Following notification by Anritsu to the Customer of such cause, Anritsu shall be allowed a reasonable extension of time for the performance of its obligations. For the purpose hereof, Force Majeure means any events or circumstances beyond the reasonable control of Anritsu including but not limited to fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, orders or requests of any Government or any other authority, strikes, lockouts or other labour disputes, even it Anritsu is a party to such disputes.
Should a Product delivered by Anritsu cause damage to property, Anritsu shall be liable only if it can be proved that such damage was due to negligence on the part of Anritsu. However, Anritsu’s liability for such damage shall be limited to direct damages of an amount equal to DKK 1,000,000 for each claim. A series of damages which may be connected to the same circumstances shall be regarded as one case of damage.
Anritsu limits its liability for death or bodily injury resulting from its negligence to the extent permitted by law.
If a claim for damages as described in this clause is lodged by a third party against one of the parties, the latter shall immediately inform the other party thereof. Anritsu shall have sole control of the defense against such action and the Customer shall be obliged to assist Anritsu to a reasonable extent in such defense.
Exclusion and Limitation of Liability
Except as provided under the clause on Product Liability above, Anritsu shall in no event be liable (including negligence) directly or indirectly as indemnitor, for indirect or consequential damages or losses including but not limited to loss of income or profit, loss of data and/or loss of opportunities and use.
The total aggregate liability (including negligence) of Anritsu for direct damages under any agreement shall be limited to the purchase price or license fee of the Product(s) giving rise to the liability. Anritsu shall in no way be liable for the Product, if the Customer, in any way, has damaged, repaired, altered, or reverse engineered the Product without Anritsu’s prior written approval.
All commercial and/or technical information, data, specifications, drawings, other documents and Software (collectively “the Confidential Information”) supplied by Anritsu hereunder, shall remain the exclusive property of Anritsu or Its third party provider and no agreement shall be construed or interpreted as an assignment of present or future intellectual property rights to the Customer by Anritsu.
The Customer shall at all times treat Confidential Information with the same degree of care to avoid disclosure to any third party as is used with respect to the Customer’s own information of like importance which is to be kept confidential (with no less than reasonable care) and shall under no circumstances disclose the same to any third party or use the Confidential Information for any purpose other than that which has expressly been stated in the Agreement.
The following license terms shall apply for the Customer’s use of any Software delivered by Anritsu hereunder, as well as associated documentation used to describe and use the same. The term »Software« shall also include any enhancement, modification, extension, part, portion or expansion thereof or implementation or downloading from network of any of the foregoing, or back-up copies.
The Customer is hereby granted a non-exclusive, non-transferable license to use the Software only on a single system or equipment, as may be applicable, solely in conjunction with and as part of the Software and application software packages provided hereunder for its own internal business purposes within the scope of the Agreement and subject to particular type of licence acquired.hereunder.
Except to the extent such restrictions cannot be imposed under applicable laws and regulations, the Customer shall not without the prior written consent of Anritsu (a) modify the Software; (b) transfer or copy the Software except for temporary transfer in the event of computer malfunctions and a single backup or archival copy; (c) remove any trademark, trade name, copyright notice or other proprietary notice from the Software, and the Customer shall be responsible for the conservation of the same in and on any back-up copy of the Software; (d) disclose or make the Software available to any other party or permit others to use it except the Customer’s employees and agents who use it on the Customer’s behalf and who have agreed to these license terms; (e) translate, reverse engineer, decompile or disassemble the Software; (f) perform or release benchmarks or other comparisons of the Software; (g) rent, lease or sublicense the Software; h) assign, give or transfer to another individual or entity; j) make the Software available over the internet or similar networking.
The Software may contain authorisation keys and license control utilities, which may not be modified or made inoperable by the Customer. Authorisation keys may be installed and enabled for use in only one license control utility.
This software license also comprises third party software forming part of the Software delivered hereunder. Unless otherwise agreed, these license terms shall apply to such third party software. For all shrink wrap software, the license terms provided with such software shall apply.
All copyright, trademarks, patents or other intellectual property rights in the Software and associated documentation and other intellectual property rights arising out of the Customer’s use of the Software shall always remain the exclusive property of Anritsu and/or its licensors.
The Customer shall maintain adequate records of the installation and site of the Software matching the use of Software and license grants and make such records available to Anritsu or the relevant third party licensor at Anritsu’s request and, upon request, permit access to the site of the Software to verify usage.
Anritsu may distribute third party open source software with the Software. These third party open source software are subject to their own license terms.
If the Customer breaches this software license, Anritsu may terminate the license with immediate effect, whereupon the Customer shall discontinue use and return to Anritsu all Software, associated documentation and copies thereof within 10 days.
The aforementioned remedy shall not be deemed to be the exclusive remedy for breach but will be in addition to all other remedies available at law.
Intellectual Property Indemnity
Anritsu shall indemnify the Customer against any lawsuit, claim or other legal action brought against the Customer alleging that the Customer’s use of the Products infringes any patent, trade secret, or other intellectual property right always provided that the Customer shall have promptly advised Anritsu of any such lawsuit, claim or action and co-operates with Anritsu in the defence and settlement thereof. Anritsu shall have sole control of the defence against such action and of all negotiations for settlement or compromise thereof.
This indemnity shall not apply to actions arising from (i) the combination, operation or use of any Products supplied hereunder with products, software or data not supplied by Anritsu, or (ii) any subject matter of the Products which were supplied, designed or instructed by the Customer, or (iii) any use of the Products in any manner or any place not contemplated hereby.
If an injunction is obtained against the Customer’s use of any of the Products delivered as a result of an action which is subject to this indemnity, Anritsu shall endeavour at its sole option to either (i) procure for the Customer the right to continue to use the Products or (ii) replace or modify same with functionally equivalent or better Products so that the Customer’s use is not subject to the injunction. If Anritsu cannot accomplish either of the foregoing, then the Customer may return the enjoined Product(s) to Anritsu. Upon Anritsu’s receipt of such Products(s), it shall promptly refund to the Customer the price for the enjoined Products(s) and/or for the license to use the enjoined Software, as the case may be, less a reasonable amount for use and obsolescence.
The above provisions set forth the entire liability of Anritsu with respect to any claim of infringement of patent or copyright or misuse of proprietary or trade secret information or other intellectual property rights.
Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part, by either party without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed; provided, however, that such consent shall not be required if Anritsu assigns the Agreement to a company within the Anritsu group of companies or in connection with a merger, acquisition, or sale of all or substantially all of its assets.
This Agreement may be terminated forthwith by Anritsu (i) if the Customer commits any material breach of any term of the Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same; (ii) if the Customer shall convene a meeting of its creditors or if a proposal shall be made for any composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the Customer shall be unable to pay its debts or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding-up of the Customer or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
Export Control Regulations
The Customer shall comply with all relevant export control regulations and restrictions of the EU and/or USA and/or Japan or the government of any country having jurisdiction over the parties or transaction(s) as applicable, to ensure that the Products (i) shall not be exported/re-exported, directly or indirectly to the proscribed countries, or foreign nationals of those countries and/or denied/restricted parties in violation of such laws; nor (ii) are intended to be used for any purposes prohibited by such export control regulations.
Legislation and Legal Venue
The construction validity, performance and interpretation of this Agreement shall be governed in all respects by Danish law.
Any dispute arising out of an Agreement and/or delivery of the Products which cannot be amicably settled shall be referred to and finally settled by the Danish Institute of Arbitration (“Det Danske Voldgiftsinstitut (Danish Arbitration)”), Copenhagen, Denmark, in accordance with its rules.
Each party appoints an arbitrator and the Institute appoints the Chairman of the Arbitral Tribunal. If a party has not appointed an arbitrator not later than 30 days after having respectively requested or received notice of the arbitration, the Institute appoints such arbitrator. The place of arbitration shall be Copenhagen, Denmark.
The proceedings shall be conducted in the English language.
Notwithstanding the foregoing, the parties shall have the right to take legal action or proceedings (i) in the Danish Courts (a) for the collection of outstanding accounts which are not disputed; or (b) if the value of the subject matter is less than DKK 100,000 or (ii) in any court of competent jurisdiction for injunctive or similar relief.
February 2018, Version 5.2