Valid from January 15th 2022
These terms and conditions (“T&Cs”) apply to all deliveries of products and/or services/consulting (“Products”) from Xtel Wireless ApS (“Xtel”) to any customer (“Customer”). Any deviation from T&Cs is only possible by a written agreement between the parties, signed by an authorized officer of Xtel. These Conditions also serve as notice of Xtel’s objection to and express rejection of any terms and conditions of purchase included in Customer’s order or other writing that are different from or additional to these T&Cs.
1. Order Confirmation and Customer Responsibilities
All quotes and projects estimates are submitted subject to the goods/project hours being unsold. Quotes are only accepted when Customer has received Xtel’ s written acceptance of the quote, including confirmation in electronic form. If Xtel submits a quote to Customer, Customer must accept in writing, including electronically, before the expiry of the acceptance deadline. Cancellation of orders must be made in writing and must be confirmed by Xtel in writing. Customer is, regardless of the reason for the cancellation, obliged to buy any goods commissioned for the order which cannot be cancelled. The goods in question shall be invoiced to Customer, at the latest by the order’s originally planned delivery time, at Xtel’s purchase price with the addition of any delivery costs. Any Product information – including information regarding weight, dimensions, capacity or other technical data, description, prospectus, advertisement etc. which is regarded as providing information, is only binding to the extent that Xtel specifically refers to it in the order and/or order confirmation. If the customer, during the cooperation, must approve parts of the material before this can be further processed, the customer is obliged to do this immediately after receipt, so that delays area voided. In the event, that the customer does not comply with this, that the customer does not deliver information on time, or that the customer has delayed the work in another way, Xtel is entitled to an extension of the delivery time which as minimum equates to the period in which the customer has delayed the delivery. If the customer has determined the specifications for a delivery, Xtel is solely responsible for meeting those specifications, but has no responsibility for the specified service being functional, or suitable for the purpose for which the customer may wish to use it. Xtel is not responsible for any copyright infringement or other rights that may be violated by the developed deliveries if such infringement can be attributed to the customer's specifications. It is the customer's responsibility to investigate such matters.
2. Prices, Costs and Payment terms
All prices provided in the quote to Customer, or as described as pr. separate signed master delivery agreement, are net prices exclusive of VAT and any other taxes. Taxes, duties or other possible charges or costs that may be incurred in connection with the transportation, delivery and use of Xtel Products must be paid by the customer. Xtel reserves the right at any time to adjust the agreed prices for Products in the event of price increases from sub-suppliers, increases in the price of materials, in the event of exchange rate change, changes in wages, government intervention or similar circumstances.All hardware project related costs as e.g.,but not limited to, PCB tests and assembly for mass production, mechanics/housing molds and formwork are invoiced separately to the customer unless otherwise agreed as pr. signed Master Agreement. Same applies to other expenses specifically related to type approval work, e.g., indicative test forCE approval, FCC or PTCRB for North America.Any incurred travel time connected withCustomer projects is invoiced according to time elapsed at the hourly price ofDKK 1.490,00/hr. unless otherwise agreed by the parties in separate MasterAgreement. Direct travel and subsistence expenses are invoiced to the customer at no extra charge.Payment conditions are fifteen (15) business days from invoice date for hardware deliveries and eight (8) days forConsulting fees. In the event of late payment, an interest surcharge of 2% per commenced month from the date of issue of the invoice is added. If an invoice is not paid on time, Xtel reserves the right to suspend any subscription related services without notice until the invoice is paid.Customer is not entitled to offset any counterclaims against Xtel which are not recognized by Xtel in writing and is not entitled to withhold any part of the purchase sum due to offsetting of any type. Any assignment of Customer’s counterclaims to a third party without Xtel’s prior written consent shall be void.Unless otherwise agreed in writing as pr.Master Agreement any subscription related service is calculated from the date of delivery and invoiced from the 1st of the following month for the duration agreed upon in the Master Agreement but as pr. these T&Cs as an up-front payment. Billing frequency is yearly at the beginning of the calendar year.
3. Delivery and Transfer of Risk
Delivery takes place Ex Works Xtel Aalborg, Denmark in accordance with Incoterms 2020. Xtel can dispatch the Products to Customer by a mode of transportation chosen by Xtel. All costs arising from this shall be paid by Customer and transportation is at the risk of Customer, including but not limited to, risk of loss and damage. Delivery is considered to have taken place at the time Xtel announces that the delivery has been made available to the customer.
The delivery time shall be stipulated by Xtel in accordance with its best estimation in accordance with those conditions which exist when the quote was submitted/the agreement was signed. The estimated date of delivery shall never be regarded as a deadline. Under no circumstances may the customer claim compensation for indirect losses, including deprivation losses, operating losses, or the like, or assert additional powers against Xtel in connection with the delay.
5. Production, Sales rights &Copyrights
Customers are only entitled to use the Products for the purpose for which it has been prepared or developed and in accordance with Project Specifications, as pr. Master Agreement or as pr. applicableDanish legislation. Customer then acquires a non-exclusive and non-perpetual right to use the software/hardware for the purpose made clear in the accompanying product specifications. Any License is only applicable for the contracted term, and will terminate, when the term expires or is terminated.Over and above this, Customer acquires no rights in the form of licenses, patents, copyrights, trademarks of other intellectual rights connected with theProduct. Customer acquires no rights to the source code of the software or hardware design.Specific product requirements from Customer are only binding to the extent they are confirmed in writing by Xtel. Xtel reserves the right to revise and discontinue Products at any time and without prior notice. Xtel will ship Products that have the same or similar functionality and performance of Products ordered, but changes, including, but not limited to, changes about measurements and weight, due to technical requirements between what is shipped and what is described in specification sheets, catalogues, or the like, are possible. Customer is always responsible forCustomer’s use of Xtel Products.The usage rights of the delivery are limited to the customer's own use and may thus not be passed on or made available to third parties unless this has been agreed upon separately in writing between the parties.
6. Term, Termination, DataProtection and Privacy
All subscriptions are made for an initial term of thirty-six (36) months (Initial Term) from delivery of the Xtel Hardware unless otherwise agreed between the parties in writing. The subscriptions are thereafter renewed automatically for a 12-month period(Renewal Term), unless terminated by either party on the terms mentioned in this Section 6. The subscription can be cancelled by either party with a notice of three (3) months before the end of the respective Initial- or Renewal Term.No repayment is made for the subscriptions if cancelled earlier than the end of the Initial Term. Xtel may cancel the subscriptions at any time with immediate effect if Customers’ account is closed according to Section 2.If any Xtel manufactured tracking enabled device has been installed, the end-customer is the Data Controller for PersonalData Processed by the Xtel tracking device. As an end-customer (DataController) you are (if operating within EU) obliged to fulfill the obligations in the relevant data protection legislation (GDPR). Xtel shall retain the right, but not the obligation to access data generated by Customer for purposes of (a) processing such data on behalf of Customer, and (b) for Xtel’s internal statistical purposes on an anonymized basis. Xtel shall also retain the right, but not the obligation, to always store data indefinitely while acting in accordance with all applicable laws and regulation. Xtel shall not sell or disclose any data unless pursuant to written direction from the Data Controller(s) of such data or pursuant to court order. However, Xtel retains the right to analyze and disclose market statistics which, among other sources are based on anonymous operating data from Xtel devices installed. Xtel shall retain the right, but not the obligation to make use of subcontractors with regard to the data Processing, and to make use of Standard Contractual Clauses if needed to uphold applicable data protection legislation and regulation. Xtel prohibits the use of Xtel Products in any way that is unlawful.
7. Secrecy and ConfidentialInformation
Any type of information which is not publicly available, including drawings and technical documents and other trade secrets, transferred by Xtel to Customer (“Confidential Information”), shall remain the exclusive property of Xtel and shall be treated as confidential by Customer. The customer is obliged to handle commercial confidentiality in terms of the information about development methodology and project solution, which the customer comes into possession of as part of the parties' cooperation. However, Xtel and the customer are both entitled to use the collaboration as a reference for general marketing purposes. Customer’s confidentiality obligations under this Section 7 shall survive the termination or expiration of these T&Cs.
8. Warranties and Product Liability
The Customer is obliged to check the Products immediately upon receipt. If there is any difference in terms of quantity, quality or any other defect is noticed, Customer shall, immediately after receipt, without unfounded delay, inform Xtel in writing of the defect. Xtel warrants that Products produced by Xtel shall be free from defects in material and workmanship for a period of one (1) year from the date of delivery although not for defects which should have been noticed during Customer’s check upon receipt of the Products, cf. above. If there are no objections to it doing so, Customer shall send the Product which Customer claims to be defective to Xtel, after prior agreement with the latter. In this case, freight and insurance costs shall be ultimately borne by Customer. The Product shall be returned to Customer if Xtel’s examination shows that the Product is not defective. Freight and insurance shall be paid by Customer. Xtel also reserves the right to invoice Customer for the technician’s time for investigating the fault. If Xtel discovers defects, Xtel shall send the repaired Product or a replacement Product to Customer. Xtel shall choose the mode of dispatch and shall pay for freight and insurance. For parts which are replaced or repaired, Xtel has the same obligations as those which applied to the original Product. Xtel is not responsible for defects which are due to normal wear and tear, opening of the units, lightning, fire, overloading, water, improper maintenance, incorrect installation, or faults with repairs carried out by anyone other than Xtel. THE LIMITED WARRANTY EXPRESSED HEREIN SHALL BE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WHICH ARE EXPRESSLY DISCLAIMED, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON XTEL’S PART. The warranty of Software Products shall in no case extend further than the warranty of the hardware as described above. Warranty of Product is contingent on Customer maintaining current releases of the Services provided by Xtel. Customer’s sole remedy and Xtel’s sole obligation under the foregoing warranty shall be for Xtel to use commercially responsible efforts to correct any substantial nonconformity of the Services reported to Xtel by Customer during the Warranty Period. The foregoing warranty shall not apply to any failure to conform by Services that is caused by a) the use or operation of Services in an environment other than that intended or recommended by Xtel, b) modifications to Services not made by Xtel, or c) third party hardware or software provided by third party and not authorized by Xtel for use of Services. Xtel assumes no responsibility for damage to person or property, other than what follows from mandatory legal rules, which Xtel is subject to in Denmark, and then only to the extent that follows from such legal rules. Damage to the customer's or third party's property caused by defects in the delivery is only covered by Xtel's liability if it is proven that the damage is due to fault or negligence in the form of intentional or gross negligence on the part of Xtel. Xtel assumes no responsibility for indirect damages, consequential damages, operating losses, and the like. Xtel's liability for product damages may in no case exceed the coverage amount in product liability insurance taken out by Xtel. Xtel is not liable for damage to real estate or movables that occur while the delivery is in the customer's possession, nor is it liable for damage to products manufactured by the customer or to products where these are included.
Customer agrees to indemnify, defend and hold harmless Xtel, its owners, officers, directors, employees, agents and insurers of each of them, from and against any and all third party claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities(including, without limitation, interest, penalties and reasonable attorneys’ fees and investigative costs) incurred by Xtel, arising from, in connection with or as a consequence of (a) any negligent, or wrongful act or omission by Customer; (b) Customer’s transfer, use or sale of any Product, except to the extent that such suit or demand arises out of the failure of such Product to meet Xtel’s express warranties; and/or (c) Customer’s possession, operation, maintenance, delivery or return of any Product. Such protection shall include, without limitation, claims for personal injury or death or property damage arising out of any act or omission of Customer or its customers. This Section 9 shall survive the termination or expiration of these T&Cs.
10. Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY PROVISION IN THESE CONDITIONS OR ELSEWHERE TO THE CONTRARY, EXCEPT FOR DAMAGES FOR BODILY INJURY (INCLUDING DEATH), DAMAGE TO REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY, AND THE INDEMNIFICATION OBLIGATIONS UNDER THESE CONDITIONS: (a) IN ANY ACTION UNDER OR RELATED TO THESE CONDITIONS, WHETHER ARISING IN CONTRACT, TORT, (INCLUDING NEGLIGENCE) OR OTHERWISE, NEITHER PARTY, OR ITS AFFILIATE, SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATE FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (i) THIRD PARTY CLAIMS FOR DAMAGES; (ii) LOSS OF, OR DAMAGE TO, DATA; (iii) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (iv) LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS; AND (b) THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY ANDITS AFFILIATES FOR ALL ACTIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, SHALL IN NO CASE EXCEED THE AMOUNT OF 500.000 DKK Xtel is only obliged, at its own discretion, to rectify ascertained defects, make a replacement or pay a proportionate refusal. Xtel assumes no liability, either for direct or indirect damages including consequential damages, operating losses, and the like. Furthermore, Xtel renounces all liability for any installation costs in connection with a defective Product. Any costs in this respect shall be borne by Customer. Xtel renounces liability for any operational problems at the chosen tele-operator and supplier of digital grids. Xtel renounces all liability for any repairs to damage which the Product or use thereof may entail. This Section 10 shall survive the termination or expiration of these T&Cs.
11. Force Majeure
Neither party is liable to the other party for loss, damage or delay caused by non-fulfillment of any obligation under this contract due to the other party's acts or omissions, or due to strike, or other industrial actions, lock-out, uprising, fire, rebellion, war, forces of nature, embargo, lack of transportation, whether equivalent or not to the above like loss, or damage to or delay in delivery from subcontractors or other circumstances beyond the control of that party. In the event of cancellation or delayed implementation, Customer cannot request compensation from or assert any other claim against Xtel. The parties shall immediately, at the first clear message of force majeure, inform the other Party of the commencement and, in the same way, of the termination of such force majeure circumstance.
12. Choice of law and venue
The parties' balances are subject to Danish legal rules. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. If at any time any one or more of the provisions of these Conditions become invalid, illegal, or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of these Conditions shall not be in any way impaired. Any dispute between Xtel and the customer regarding the parties' contractual relationship, including these general terms and conditions or conditions arising from the parties' balances or cooperation, shall be settled at the city court of Aalborg. All judgments are confidential and shall not be disclosed to the public.
13. Complete Agreement
These Conditions and Xtel’s written acceptance constitute the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions, or warranties with respect to the Products.
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