Terms and Conditions of Sale | FOM Technologies

1. Scope of Applicability

A. These General Terms and Conditions of Sale (“TCS”) apply to FOM Technologies´ sales of goods. In these TCS, “goods” means any products or other goods and services supplied by FOM Technologies. These TCS apply irrespective of and take precedence over any conflicting, contrary, or additional terms and conditions in any purchase order or other communication from the customer. No such conflicting, contrary, or additional terms and conditions shall be deemed to be accepted by FOM Technologies unless and until FOM Technologies expressly confirms acceptance in writing.

B. The specifications, content, delivery time, and prices of the goods of FOM Technologies are determined in a separate written offer forwarded by FOM Technologies.

C. FOM Technologies takes no responsibility for the quality of the customers’ results when operating the equipment or applying the
materials.

2. Offers, Purchase Orders, and Order Confirmations

A. All offers made available by FOM Technologies are open for acceptance within 30 days from the date of issue unless otherwise specifically stated. Delivery times specified in such offers are subject to the availability of the goods offered.

B. All written purchase orders issued by the customer shall specify as a minimum the type and quantity of goods requested and unit prices as stated in the offer made by FOM Technologies. No purchase order shall be binding on FOM Technologies unless and until expressly confirmed by FOM Technologies in writing.

3. Terms of Delivery

A. Unless expressly stated otherwise in the order confirmation of FOM Technologies, all deliveries of goods shall be EX WORKS, Copenhagen, Denmark (INCOTERMS 2021).

B. The risk of loss of or damage to goods shall be passed to the customer in accordance with the agreed delivery terms.

C. The delivery dates of goods shall be those set forth in our order confirmation. If FOM Technologies delivers goods within twenty-one
working days of the agreed delivery date, goods are considered delivered on time.

D. FOM Technologies reserves the right to make partial deliveries.

E. The customer shall bear all freight and insurance costs, packing costs, taxes and duties, etc. To the extent such are initially paid by FOM Technologies, FOM Technologies will invoice the customer for any such costs, and the customer will reimburse and thus pay such costs to FOM Technologies.

F. In case FOM Technologies is unable to either pass over the goods to the customer’s forwarder or directly to the customer, FOM Technologies reserves the right to charge a storage fee, calculated on a weekly basis.

4. Prices and Terms of Payment

A. The prices for goods shall be those set forth in the FOM Technologies order confirmation. All prices are exclusive of taxes, impositions, and other charges, including, but not limited to, customs, import, sales, use, excise, value-added, and similar taxes or charges imposed by any government authority.

B. Unless expressly stated otherwise in the FOM Technologies order confirmation, payment for goods shall be made as follows:
For order values < EUR 15,000, FOM Technologies will invoice 100% of the total order at the instructed date for pick-up at the FOM Technologies site with 8 days credit. For orders with a value between EUR 15,000 and EUR 250,000, FOM Technologies will invoice 50% of the total order at the date of the order confirmation (Upfront payment) with 8 days credit. The remaining 50% will be invoiced at the instructed date for pick-up at the FOM Technologies site with 30 days credit. FOM Technologies shall always inform the Purchaser about the time for pick-up min. 5 working days prior to the completion of the machine(s). By doing so, the Purchaser will have adequate time to arrange pick-up according to 3.A.

C. FOM Technologies may at any time change agreed payment terms without notice by requiring payment cash in advance or cash on delivery, bank guarantee, letter of credit or similar payment guarantee.

D. If the customer fails to pay any invoice within seven calendar days of the due date of payment, FOM Technologies may suspend delivery of any purchase order or any remaining part thereof until payment is made or terminate delivery of any purchase order or any remaining part thereof by providing written notice of termination to the customer within fourteen calendar days of the expiration of the grace period. Further, FOM Technologies may charge the customer interest from the due date to the date of full payment at the rate of 1.5% per month. The interest and other remedies specified above shall be in addition to, and not in limitation of, any other legal rights or remedies to which FOM Technologies are or may be entitled.

E. Title to goods delivered shall remain exclusively vested in FOM Technologies and shall not pass to the customer until the goods in
question have been paid for in full. If the customer fails to pay any invoice in full within fourteen calendar days of the due date of payment, FOM Technologies may retake the goods covered by the invoice. The customer must ensure all goods are delivered to their full replacement value until the title to the goods has passed to the customer.

F. If the customer cancels online or onsite installation, or online or onsite training less than 5 working days before the agreed time, FOM Technologies is entitled to 100% compensation of the agreed cost. FOM Technologies will re-schedule and re-invoice.

5. Acceptance of goods

The customer must inspect goods delivered upon receipt. The customer is deemed to have accepted goods delivered unless written notice of rejection specifying the reasons for rejection is received by FOM Technologies within seven calendar days after delivery of the goods.

6. Warranty

A. If not otherwise specified in the FOM Technologies offer, FOM Technologies warrants the goods for a period of twelve (12) months starting 30 days after the date of delivery to the customer site (“Warranty Period”). The start date of the Warranty Period will be noted in the SAT (Site Acceptance Test) document, which is to be signed by the customer and FOM Technologies. Goods purchased hereunder will conform in all material respects to the applicable manufacturer’s specifications for such goods and will be free from material defects in workmanship, material, and design. Customers must follow the guidelines and perform the necessary preventative maintenance outlined in the Operations Manual, or the warranty will be voided. The warranty does not cover damage or defects resulting from any misuse, negligent handling or storage, lack of reasonable maintenance and care of applied equipment, accident, or abuse.

B. Within the Warranty Period, FOM Technologies will, in its sole discretion, decide whether to (i) refund the purchase price for such goods less a reasonable amount for usage, (ii) repair of such goods, or (iii) replace such goods; provided, however, that such goods must be returned to FOM Technologies, along with acceptable evidence of purchase, within fourteen calendar days after the customer discovered the lack of conformity or (ought to have discovered it). In the case of on-site warranty repair, the customer will cover travel expenses and accommodation costs of FOM Technologies.

C. FOM Technologies makes no other warranty, expressed or implied, with respect to goods delivered hereunder, and the warranty constitutes our sole obligation in respect of any lack of conformity of goods delivered hereunder (except title).

7. Intellectual Property Rights and Infringement

A. FOM Technologies retains full ownership in and to all intellectual property rights created, acquired, or otherwise obtained, including with respect to the goods. Nothing set out in these TCS shall be deemed, whether directly or indirectly, to assign, transfer, or grant any rights to any of intellectual property rights to the customer, a customer of the customer, or any other third party.

B. FOM Technologies is free to apply and disseminate knowledge and know-how about the goods. If any goods delivered hereunder are held to infringe a third-party’s patent, utility model, design, trademark, or other intellectual property right and the customer is enjoined from using same, FOM Technologies will, at our option and expense, (i) procure for the customer the right to continue using the goods; (b) replace the goods with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the goods to make them non-infringing; or (d) refund the purchase price of the goods less a reasonable amount for usage. The foregoing states our sole liability for intellectual property rights infringement.

8. Product Liability

A. If the goods supplied by FOM Technologies cause injury or damage to the customer or his belongings, or a third party or his belongings, FOM Technologies shall compensate the customer for his loss subject to the limitation specified in subsection 8.B below. This includes indemnifying the customer for any justified claim brought against the customer by an injured third party, even if the injury or damage was not caused by the negligence of FOM Technologies or anyone for whom FOM Technologies is responsible.

B. Notwithstanding the provision of subsection 8.A above, FOM Technologies cannot be held liable for damage caused to objects intended for commercial use, nor can FOM Technologies under any circumstances be held liable for any indirect losses, liquidated damages, penalties, and/or other consequential damages suffered which shall apply regardless of whether such indirect losses, etc. are suffered by the customer or any third-party. Without limiting the generality of the aforesaid, any loss of business opportunities, loss of profit, loss of goodwill, and loss of data shall always be considered as indirect losses pursuant to these TCS.

C. If the customer has contributed to the damage to the product through negligence or has failed to take reasonable precautions to limit the scope of damage, FOM Technologies may demand that the customer pays a proportion of the compensation which is commensurate with his conduct.

D. In the event of legal action being taken against FOM Technologies or the customer with a claim for compensation based on the rules governing product liability, each party undertakes to let himself become involved in a pending case against the other party at the latter’s request. The relationship between FOM Technologies and the customer shall, however, be settled by arbitration pursuant to section 13 below, if requested by FOM Technologies.

9. Limitation of Liability

A. FOM Technologies shall be liable to pay damages in accordance with the general rules of Danish law subject to the limitations and exclusions set out in these TCS, including this section.

B. Customer recovery from FOM Technologies for any claim shall not exceed the purchase price for the specific goods giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty, or otherwise.

C. FOM Technologies shall not be liable for any claims based on (i) our compliance with customer designs, specifications, or instructions, (ii) repair, modification, or alteration of any goods by parties other than FOM Technologies, or (iii) use of our goods in combination with third-party products. FOM Technologies accepts no responsibility that the delivered goods lead to the desired results when applied by the customer in their production process.

10. Non-disclosure, non-circumvention & non-reverse engineering clause

All purchases of goods from FOM Technologies are subject to strict non-disclosure, non-circumvention, and non-reverse engineering restrictions. The customer unconditionally accepts and agrees that no disclosure, circumvention and reverse engineering with respect to any products of FOM Technologies in any case whatsoever is allowed. Failure to comply with this provision will result in legal action.

11. PR/Marketing

FOM Technologies may refer to the customer’s name or logo on FOM Technologies’ website.

12. Regulatory Requirements

A. The customer undertakes to comply with all applicable regulatory legislation applicable to the business activities as conducted at any time by the customer in any territory related to the goods. The obligations of the customer include but are not limited to observing that goods used by the customer will conform in all respects to applicable regulatory legislation in all territories, including any applicable import and export legislation, regulations, and orders.

B. The goods contain components produced in the USA. The customer may not directly or indirectly import, re-import, export, re-export, sell, distribute, or otherwise make available the goods for use in any country in the world contrary to the then-current US Export Regulations, including, e.g., Cuba, Iran, North Korea, Russia, Sudan, and Syria. The aforesaid listing of countries is not exhaustive and is subject to change.

13. Force Majeure

Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of war, fire, insurrection, strikes, lockouts, or other serious labor disputes, riots, earthquakes, floods, explosions, pandemics or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period of more than thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party

14. Miscellaneous

A. If any provision of these TCS and/or the application of any such provision is declared judicially to be invalid, unenforceable or void, such decision shall not invalidate or render void the remainder of these TCS, and it is the intent of the parties that these TCS will be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable and that achieves to the largest extent possible the same objective.

B. These TCS are governed by Danish law (save for any provisions concerning the choice of law), and the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded and shall not apply.

C. Any dispute between the parties shall be subject to the exclusive jurisdiction of the ordinary Danish courts.

D. These TCS may be amended by FOM Technologies in its sole discretion at any time for any future orders placed. Version: 1.4 August 2024 – Errors and omissions excepted.

FOM Technologies
Bryggergården 2-12
2770 Kastrup
Denmark

VAT: DK 34 715 726
Tel: +45 8870 8900