1. Introduction
1.1. These Terms and Conditions “Terms” apply to all supplies and services provided by Engineered Market Solutions ApS “EMS”, CVR no. 33387997, Lillebæltsvej 37, 6715 Esbjerg N, Denmark. By engaging with our products and services, the Customer agrees to abide by these terms and conditions.
1.2. These terms and conditions constitute the entire agreement between EMS and the Customer applicable to EMS’ performance of a purchase order (“PO”). A PO is only binding upon EMS’ written acceptance of such PO and any exception and/or amendment to these Terms is only valid if agreed in the written order confirmation sent by EMS.
1.3. Both parties shall act in good faith and maintain open communication to ensure a successful corporation.
2. Mutual obligations
2.1. EMS shall deliver products and services as outlined in the agreed scope of work defined in the PO.
2.2. The Customer is responsible for providing accurate and complete specifications, information necessary for fulfilling the order, material and unrestricted access to work sites where applicable.
2.3. Any changes to the agreed scope of work requested by the Customer will entitle EMS to adjustments to pricing and timelines, which shall be communicated in advance.
3. Pricing and Payment
3.1. Prices for products and services are as agreed upon in order confirmation.
3.2. Prices are in Danish Kroner (DKK) exclusive VAT, freight, customs, taxes and other expenses.
3.3. If the price of the offered products or services is changed due to unforeseen changes in customs, taxes changes in laws, collective agreements etc., EMS shall be entitled to adjust the agreed price correspondingly.
3.4. Payments must be made within 14 days from the invoice date. Delayed payments will incur interest of 1,5% per commenced month of delay. Delayed payments will be deemed as a material breach, entitling EMS to terminate the PO and claim compensation for any direct and documented costs which EMS has incurred due to such termination.
3.5. Title to the products will transfer to the Customer upon full payment of the purchase price.
3.6. Payment by set-off is not accepted.
4. Delivery and Timeline
4.1. EMS shall deliver the products and services within the agreed-upon timelines, barring unforeseen circumstances.
4.2. All deliveries are Ex Works.
4.3. Any delays caused by the Customer, such as providing incomplete requirements, or requesting changes to the scope of the PO etc., shall entitle EMS to an extension of the timeline and/or payment of any additional costs incurred due to such delay.
5. Confidentiality
5.1. Both parties agree to maintain the confidentiality of proprietary or sensitive information shared during the course of the agreement and thereafter.
5.2. Information shall not be disclosed to third parties without prior written consent, except as required by law.
6. Force Majeure
6.1. Neither Party shall be held responsible for the non-fulfillment of obligations caused by force majeure, as defined in the ICC Force Majeure Clause (2020). Force majeure includes, but is not limited to: natural disasters, pandemics, government restrictions, industrial disputes, and other unforeseeable events beyond the control of the affected Party.
6.2. The affected Party must notify the other Party promptly in writing, providing all necessary documentation. Both Parties agree to mitigate the impact of such events to the best of their ability.
7. Rental equipment
7.1. For cancellation of the rental by the Customer informed to EMS at least 5 days before start of the rental period, 50% of the rental price for the planned rental period will be charged; in case of cancellation of the rental by the Customer informed to EMS 2-4 days before start of the rental period, 75% of the rental price for the planned rental period will be charged. in case the rental is cancelled less than 2 days before the start of the rental period, the Customer shall make full payment of the rental price for the planned rental period.
7.2. If the Customer delays the start of the rental period, irrespective of the reason for such delay, the Customer shall pay 50% of the rental price for each day that the rental period is delayed. If the Customer later cancels the rental, the Customer shall pay the remaining part of the full rental price for the planned rental period.
7.3. Rental equipment is to be checked by the Customer upon receipt for completeness and function. Defects are to be reported immediately after receiving the Rental Equipment. Defects that are due to construction or material deficiencies shall be remedied by EMS at their own expense.
7.4. Should damage to the equipment occur due to improper operation, storage, handling or treatment, the Customer will be charged for all related repair costs. Normal wear and tear is covered by the rental price.
7.5. In the event the Customer loses any of EMS’s equipment during the rental period, EMS will be entitled to charge a fee for the cost of acquiring new equipment. The fee can be charged without further notice 30 days after the original rental end date, unless end date is changed and agreed in writing.
7.6. The rental period will not conclude until the equipment has been returned to and officially received by EMS.
8. Intellectual Property Ownership (IPO)
8.1. All intellectual property rights, including but not limited to patents, copyrights, trademarks, designs, and knowhow, arising from the services provided or products delivered by EMS, shall remain the sole property of EMS unless otherwise explicitly agreed in writing.
8.2. The Customer shall not replicate, reverse engineer, or use EMS’s intellectual property without prior written consent. Any unauthorized use will be considered a breach of this agreement and will be subject to legal action.
8.3. Intellectual property developed specifically for the Customer under this agreement shall be transferred only upon the Customer’s full payment of the products and subject to a prior written agreement between the parties, with EMS retaining a perpetual, royalty-free license to use the developed material.
8.4. Both parties agree to respect each other’s pre-existing intellectual property and shall not claim ownership or usage rights without prior consent.
9. Defects and Warranty
9.1. The Customer must visually inspect the delivery upon receipt. Defects must be reported to EMS in writing without undue delay after discovery, however no later than 7 days after the Customer discovered, or should have discovered, the defect. Failure to notify EMS promptly forfeits the Customer’s right to assert a claim under the warranty.
9.2. The product warranty period is 12 months from delivery Ex Works.
9.3. The Warranty does not cover:
a) Customer-Related Issues: Defects arising from customer-supplied materials, designs, misuse, negligence, unauthorized repairs, alterations, or failure to comply with provided guidelines.
b) Operational Deviations: Damage caused by non-standard use, operations beyond design limits, or failure to address known structural weaknesses.
c) Third-Party Interventions: Defects resulting from installations, repairs, or modifications performed by unauthorized third parties.
d) Product-Specific Limitations: Exclusions apply to certain product implementations and repairs on internal or evolutive defects (as per ASME or ISO standards).
e) Normal wear and tear.
f) Indirect or Consequential Losses: Loss of income, incidental damage, or claims resulting from product failure or operational disruption.
9.4. EMS will remedy valid defects through repair, replacement, or a price deduction, at EMS’ discretion. The warranty for remedied defects is equal to warranty period mentioned under 9.2. The new warranty period starts from delivery of the repaired part. EMS’s liability is limited to direct and documented costs.
9.5. Defect products must be returned to EMS at the Customer’s expense. The Customer also bears costs for offshore / on-site operations or activities, including, but not limited to, transportation of personnel, equipment, goods and parts of the work, lodging, and lifting.
9.6. Leak sealing solutions provided by EMS through our partners are always life expanding solutions until permanent repair of the leak/defect can be fulfilled by the customer. Lifetime for Leak sealing solutions are defined in the quotation if possible. There is no warranty for leak sealing solutions.
10. Limitation of Liability
10.1. EMS’ total, aggregate and maximum liability under or in connection with a PO whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not in any event exceed the total price of the PO.
10.2. EMS shall not be held liable for any indirect, incidental, or consequential damage arising from or in connection with the performance or non-performance of the PO.
11. Mutual Knock-for-knock Indemnity Clause
11.1. The Knock-for-Knock clause applies exclusively when EMS performs service or installation work.
11.2. Each party agrees to be responsible for and indemnify the other party against any loss, damage, injury, or liability arising from or related to personal injury, death, or company property damage suffered by its own personnel, contractors, or assets, regardless of the cause, including negligence or breach of duty by the other party.
11.3. Neither party shall have any right of recourse against the other party (including its affiliates, employees, contractors, or representatives) for such losses or damages, even if caused in whole or in part by the acts, omissions, or negligence of the indemnified party.
11.4. Each party shall maintain appropriate insurance to cover its own risks under this clause and shall ensure that its insurers waive any rights of subrogation against the other party.
11.5. The obligations under this clause shall survive the termination or expiration of the PO, to the extent that any claims arise in connection with the PO.
12. Insurance
12.1. For engineering services, EMS maintains a professional liability insurance coverage of max. DKK 500.000 per occurrence and max. DKK 1.000.000 per year. EMS shall not assume any liability exceeding these stated amounts.
12.2. EMS disclaims all liability for handling, storage, or warehousing of the Customer’s property, whether at EMS or third-party facilities. The Customer assumes all risks of damage, loss, or costs related to their property.
12.3. The Customer agrees to indemnify EMS against any claims or damage resulting from misuse or unauthorized use of the products or services.
12.4. The Customer shall maintain comprehensive insurance for damages to EMS property or personnel during storage or handling of the products at EMS facilities. EMS must be included as a co-insured party on relevant policies, and the Customer’s insurer must waive subrogation or recourse rights against EMS.
13. Product Liability
13.1. Product Liability damages regarding Customer´s products, which EMS have processed or made incorporations in, shall be limited to DKK 1.000.000 per year for all incidents or liability occurred in the same and in a given calendar year.
13.2. EMS’ Product Liability for property damage, shall be limited to DKK 10.000.000 per year for all incidents or liability occurring in the same and in a given calendar year. EMS does neither assume any Product Liability for damage to Customer’s nor Customer’s client’s property (real estate, equipment, tools, buildings and similar).
13.3. The Customer shall immediately inform EMS if a third-party claims product liability towards the Customer. To the extent EMS will be imposed liability against a third party, the Customer is obliged to compensate EMS to the extent EMS’s liability is limited cf. the above- mentioned.
13.4. If EMS should be sued by a third party due to a product liability claim the Customer accepts to be joined as a party during the proceedings or as a sued by the Court or Arbitration Tribunal which hear the case.
14. Disputes, Governing Law and Jurisdiction
14.1. Disputes between the parties which cannot be settled amicably shall be settled by the Court of Esbjerg by use of Danish Law. However, the International Sale of Goods Act (CISG) shall not be applicable.
15. Contact Information:
Engineered Market Solutions
Phone: +45 76 56 99 00
Email: ems@engineeredmarketsolutions.com
Address: Lillebæltsvej 37, DK-6715 Esbjerg N.
