In the following you will find the general terms and conditions that applies when hiring employees, agents and/or representatives from Funktionel APS, having its registered address at: Goeteborgvej 9, 8600, Silkeborg, Denmark. The terms and conditions will apply at any time unless a written contract, stating any deviations from the general terms & conditions, have been signed by both the managing director of Funktionel APS and an authorized person who is legally representing the company of the costumer. The Client/Costumer is sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
Funktionel APS. reserves the right to change these terms and conditions at any time without prior notice. In the event that any changes are made, the revised terms and conditions shall be posted on the company website immediately.
1.1. Work. Funktionel APS agrees to provide the Services and Products listed in the Statement Of Work (hereinafter, the “Work” or SOW).
1.2. Location. Funktionel APS may perform the Work at any location necessary, but shall only be required at the offices of Client as set forth in the SOW.
1.3. Illness or Injury. Funktionel APS shall not be obligated to perform Work during any period when Funktionel APS employee(s), agent(s) or representative(s) who are performing services as authorized pursuant to this Agreement with respect to the Services, is disabled due to illness or injury. Any schedule set forth in the SOW shall be reasonably extended to account for such time.
1.4. Description of Work. In the following is a brief description of the work agreed between Funktionel APS and the client:
1.5. Timeframe. The estimated timeframe, for the work, in full days including traveling is:
2.1. Prices. For prices please refer to the agreement made between the client and Funktionel APS.
The price stated in the agreement covers what is considered to be normal work. Any work that requires special training, equipment and/or permits will be charged accordantly to a price agreed with the Client before the work is started.
2.2. Transport. Transport between the site and hotel will be charged as work hours.
2.3. Normal work hours. A normal workday will consist of a maximum of 10 hours, carried out anytime between 7 am and 7 pm in weekdays (Monday to Friday). All work after 10 hours, outside the earlier stated timeframe, in weekends and/or on holidays will be charged an additional fee on top of the tariff as per the agreement referred to in section 2.1
2.4. Waiting hours and delays. Should waiting hours/delays occur for reasons beyond Funktionel APS’s control, the Client will be charged according to our normal tariff. If this delay is considered to be beyond a reasonable time frame (this time frame will be evaluated by the leading Funktionel APS engineer onsite, in corporation with Funktionel APS’s head office), Funktionel APS will reserve the right to allow all Funktionel APS personnel to leave the site until the client is ready for the work to continue, all travelling expenses to and from the site, related to delays beyond Funktionel APS’s control, will be invoiced separately.
2.5. Travel hours. Travel hours are defined from the time the Funktionel APS’s employees, agents and/or representatives begins the journey to he/she arrives to the site or office of the Client. If the Funktionel APS’s employees, agents and/or representatives arrives after work hours, in weekends, after a long travel (more than 6 hours) or any other time that would be considered inadequate for any work to be done within normal work hours, the travel hours will be from the Funktionel APS’s employees, agents and/or representatives begins the journey to he/she arrives to the hotel. In case the Funktionel APS’s employees, agents and/or representatives is expected to work when he/she arrives to the site or office of the Client the travel hours will be added to the work hours, meaning when the total hours (travel hours + work hours) exceeds 10 hours an additional fee will be charged, as described in section 2.3. Also see section 2.1.
2.6. Breaks. All breaks during the work day will be charged as work hours according to the tariff as per the agreement referred to in section 2.1.
The Funktionel APS employee, agent and/or representative should be allowed to follow the normal breaks of the client/worksite, with no less than one (1) hour total break in a 8 hour working day, with additional 15 minutes per every two (2) hours work after 8 hours and should be allowed at least ½ an hour lunch/dinner break. If lunch/dinner is not provided on site there must be accounted for the extra time used for transport between the site and restaurant.
2.7. Fixed period projects. If the pricing of a project is based on a fixed period and time, and the estimated period is extended by reasons beyond Funktionel APS’s control, the Client will be charged according to our normal tariff, this will be invoiced separately.
2.8. Currency. The currency used in the pricing for work and in quotations will be in EUR (Euro) or (USD (American Dollars), depending on the Client geographical location. This is done to help the client to relate the prices to the global marked and to ease the conversion into the local currency. As stated in section 6.2 the final invoice will be in EUR (Euro).
2.9. Invoices and bills. All invoices and bills (this could be, but not limited to: hotel, flights, transportation, meals etc.) paid by any Funktionel APS employee, agent and/or representative will be considered internal documents and will under normal circumstance not be shared with any parties outside the company.
2.10. Rebilling. Any rebilling of invoices and bills to pay for (but not limited to): hotel, flights, transportation, meals etc. will be charged an additional 10 % on top of the original bills total amount to compensate for changing in currency rates and administrative work.
2.11. Tips. In countries where tips are considered mandatory (e.g. in restaurants in USA) the tips will be included in the bills when paid and will therefor also be added to the invoice when rebilling.
3.1. Resting after travel. If the total traveling time exceeds 6 hours any Funktionel APS employee, agent and/or representative must be allowed to have at least 10 hours of coherent rest after arriving to the hotel before starting any work. In order to comply with the safety standards within Funktionel APS it is of the out most importance that any employee, agent and/or representative are well rested in order for him/her to perform his/her job in a safe manner.
3.2. Less than 10 hours of coherent rest. If it is required that Funktionel APS’s employees, agents and/or representatives must be present/work less than 10 hours after arriving to any site/facility that requires more than a total of 6 hours of travel, the employee, agent and/or representative must travel on business class or equal in order for him/her to be as rested and well prepared as possible.
3.3. Approval. Regardless of the travel time any work that is required to be performed less than 10 hours after the employee, agent and/or representative has arrived to the site/facility has to be approved from the management of Funktionel APS, without this approval any Funktionel APS employee, agent and/or representative are in their full right to refuse to perform the work regardless of the clients opinion on this matter.
3.4. Early completion of work. If a job is completed ahead of the agreed schedule Funktionel APS’s employees, agents and/or representatives will reserve the right to leave the site even if this is adding an extra cost to costumer in form of additional charges in the ticket, hotels etc.
If a hotel have been booked for a fixed period and this cannot be canceled the entire cost of the stay will be invoiced to the costumer even if the employees, agents and/or representatives will not be using the hotel for the remaining period.
4.1. Hotel/Accommodation. The standard of accommodations for Funktionel APS’s employees, agents and/or representatives must be comparable to a 4-5 star hotel, if available within a reasonable distance from the site. Any accommodation should be of a quality where the Funktionel APS employees, agents and/or representatives can rest in private, healthy and comfortable surroundings. All rooms must have private toilet and bathing facilities. If the Client provides the accommodation, Funktionel APS reserves the right to relocate any Funktionel APS employees, agents and/or representatives if the standard of the provided accommodations is not of a standard as required and described in the latter. The hotel and living expenses are not included in the standard tariff stated and will be invoiced separately.
5.1. Travel. All expenses related to tickets to and from the clients location and/or the work site are not included in the standard tariff and will be invoiced separately.
5.2. Expenses. Travel and living expenses are not included in the standard tariff and will be invoiced separately.
Further travelling necessary to complete the job due to reasons beyond Funktionel APS’s control will be invoiced separately.
5.3. Transport. Local transport and other expenses related to transport, this also include car rental, to and from the work site, hotel and airport are not included in the standard tariff and will be invoiced separately.
6.1. Payment. Payment shall be due immediately upon receipt of the invoice, unless specified elsewhere in the contract, signed by both parties. Any payment made to Funktionel APS will not be refunded unless Funktionel APS has not completed the work in an intentionally dishonest manner or did not fulfil them in a satisfactory manner deliberately.
6.2. Currency. Payment shall be due in Euro. Payments made in other currencies will be converted into Euro as per the exchange rate used by the bank. The Client will be carrying the additional bank charges, if any. If pricing is agreed, between Funktionel APS and the client, in any other currencies, the conversion rate will be written on the invoice.
6.3. Taxes. All prices are exclusive of duties and taxes imposed on the Client by any governmental agency. Client shall be solely responsible for obtaining and providing any certificate of exemption or any similar document required to exempt a sale from sales, use or similar tax liability, and Client shall be and is solely liable for the payment of any such sales, use or other transactional tax imposed on or arising from the sale of the Products to Client.
6.4. Late payment. Unless agreed upon in a written contract the payment of any invoice should be made within 14 days from the date printed on the invoice. If the payment has not been received within the specified time frame an additional fee of 1.5% of the total invoiced amount will be charged. This additional fee will be charged for every 14 days, on top of the fees already charged, until the payment has been received.
On the third notice there will be charged an additional fee of 10 % to cover the initial legal fees. After the third notification the matter of the outstanding payment will be send to the company’s lawyer for further legal actions, with the intend of processing the outstanding payment through the legal system either in Denmark or in the country where the client is based.
7.1. Funktionel APS cannot be held liable for:
7.2. No consequential damages. Under no circumstances whatsoever shall Funktionel APS be liable to the client or any other person for any consequential damages, whether based on lost goodwill, lost resale profits, work stoppage, impairment of other goods or otherwise and whether arising out of breach of any expressed or implied warranty, breach of contract, negligence or otherwise, except only in the case of personal injury where applicable law requires such liability.
8.1. Force Majeure. No Party shall be liable to another Party because of any failure to perform hereunder caused by any cause beyond said Party’s control, including without limitation fire, earthquake, flood, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God or law, except as expressly provided herein to the contrary. Notwithstanding the foregoing, should such failure to perform last for 180 days, then the Party affected shall be able to terminate this Agreement.
8.2. No Waivers. No waiver by any Party to this Agreement of any breach of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision hereof. The exercise of any right granted to a Party hereunder shall not operate as a waiver.
8.3. Amendment. The terms of this Agreement may not be amended, waived or modified, except by a writing duly signed by the Parties referring to the specific provision to be waived, amended or modified. Notwithstanding the foregoing, Client, without the consent of the other Parties, may amend any provisions of this Agreement to cure any ambiguity or correct or supplement any provision herein which may be inconsistent with any other provision of this Agreement, or any amendment or attachment hereto, or to correct any printing, stenographic or clerical errors or omissions in order that this Agreement shall accurately reflect the understanding of the Parties. Any amendment to this Agreement, or attachment hereto, shall be delivered to the Parties under the notice provisions of Section 8.5 of this agreement.
8.4. Severability. Whenever possible, each provision of this agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained herein.
8.5. Notice. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given by delivery, by facsimile, by mail (registered or certified mail, postage prepaid, return receipt requested) or by original signed document send by e-mail as a PDF file, to the respective Party at the addresses set forth on the signature page hereto. The Parties shall be entitled to change its address for purposes of this section by notice to the other. All notices shall be effective upon actual receipt, or upon the passing of five (5) days from the mailing of such notice, whichever occurs first.
8.6. Headings. The headings in this Agreement are solely for convenience of reference and shall not affect its interpretation.
8.7. Entire Agreement. This Agreement, including exhibits, schedules, and attachments, if any, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any prior correspondence, negotiations, agreements, understandings and representations with respect thereto.
8.8. Execution in Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail or other electronic medium shall have the same force and effect as an original signature.
8.9. Site. Site includes the actual work site and other locations where programming, tests, the checking of materials, equipment and quality of work are carried out.
Funktionel APS is an independent contractor, not Client’s employee. Funktionel APS’s employees, agents, representatives and contract personnel are not Client’s employees. Funktionel APS and Client agree to the following rights consistent with an independent contractor relationship:
9.1. Non-Exclusive. Funktionel APS has the right to perform services for others during the term of this Agreement.
9.2. No Additional Obligations. Funktionel APS may be requested, but shall have no obligation, to perform any work other than as listed in the contract.
9.3. Control of Services. Funktionel APS has the sole right to control and direct the means, manner and method by which the services and products required by this agreement will be performed or manufactured. Consistent with this freedom from Client’s control, Funktionel APS shall adopt and carry out its own strategy and methods to accomplish the services and develop the products.
9.4. Location and Time. Unless otherwise set forth in the contract, Funktionel APS has the right to perform the Services required by this agreement at any location or time.
Site includes the actual work site and other locations where the checking of materials, equipment and quality of work is carried out.
9.5. Use of Agents and Employees. Funktionel APS has the right to hire assistants as subcontractors, or to use employees to perform the work, unless specifically prohibited in the contract.
9.6. No Full-Time Requirement. Client shall not require Funktionel APS or Funktionel APS’s approved employees, agents, representatives or contract personnel to devote full time to performing the work.
10.1. Both Parties represent that they are fully authorized and empowered to enter into this Agreement, and that the performance of the obligations under this Agreement will not violate or infringe upon the rights of any third-party, or violate any agreement between the Parties and any other person, firm or organization or any law or governmental regulation.
11.1. Confidential Information. Any intellectual property, technology, methods, processes, tools, software, customer lists, and the ideas and the expressions contained therein and any information or other documentation relating thereto (“Confidential Information”), are confidential, proprietary information and trade secrets that of the providing Party that the other Party will receive in confidence.
11.2. Use of Client Confidential Information. The receiving party shall use any confidential information solely to the extent necessary in connection with this agreement and in furtherance of the Work, and shall make only that number of copies of confidential information as are necessary to the work.
11.3. Non-Disclosure. The receiving party shall not in any manner or form disclose, provide or otherwise make available, in whole or in part, any confidential information, to any third parties except for the employees, agents and consultants, if any, who are bound by appropriate and equally restrictive non-disclosure agreements. The receiving Party acknowledges and agrees that all Confidential Information, except as specified in Section 11.5 below, that comes to be known by reason of work under this agreement, is confidential and will not be disclosed to unauthorized third parties.
11.4. Standard of Care. The receiving party will use the same standard of care, and will bind its employees, agents or representatives, if any, to such standard, to prevent disclosure of Confidential Information as the receiving party uses to protect its own confidential information and trade secrets, but in no case less than reasonable care.
11.5. Exceptions. Information under this agreement will not be considered Confidential Information if such information: (a) is already known to or is already in the receiving party’s lawful possession at the time of executing this Agreement; (b) is in the public domain at the time of disclosure; (c) is independently developed not in connection with the work; (d) is disclosed by a third party with written approval of the owner; or (e) is required to be disclosed by a court or other administrative body of competent jurisdiction, provided that the receiving party provides prompt notice prior to any such mandated disclosure.
12.1. Client Intellectual Property. Client and Funktionel APS each agree that all intellectual property of Client used in the Work, including without limitation, patents, patentable intellectual property, analytical tools, testing protocols, hardware, software, firmware, algorithms, methodologies and all other proprietary information and trade secrets of Client which are used in the Work (the “Client IP”) shall remain the sole and exclusive property of Client. Client shall retain the right to seek, apply for and obtain any or all copyrights, patents, registrations and similar protections which may available in the Client IP, including reissues, extensions, divisions and continuations thereof. Funktionel APS acknowledges and agrees that the Client IP is Confidential Information.
12.2. Funktionel APS Intellectual Property. Client and Funktionel APS each agree that all intellectual property of Funktionel APS used in the Work, including without limitation, patents, patentable intellectual property, analytical tools, testing protocols, hardware, software, firmware, algorithms, methodologies and all other proprietary information and trade secrets of Funktionel APS which are used in the Work (the “Funktionel APS IP”) shall remain the sole and exclusive property of Funktionel APS. Funktionel APSshall retain the right to seek, apply for and obtain any or all copyrights, patents, registrations and similar protections which may available in the Funktionel APS IP, including reissues, extensions, divisions and continuations thereof. Client acknowledges and agrees that the Funktionel APS IP is Confidential Information. Unless explicitly stated otherwise in the Contract, all tooling and methods used in the assembly and manufacture of products shall be the sole and exclusive property of Funktionel APS, whether or not the Client has provided Non-Recurring Engineering funding (also called NRE charges) for such tools and methods.
13.1 In no event shall either party be liable to the other for any special, indirect, incidental, exemplary or consequential damages resulting from any act or event occurring in connection with, or during the course of, the work, including loss of profits and goodwill, even if a party has actually been advised of the possibility of such damages.
14.1.Upon Breach, Notice, or Bankruptcy. Either Party may terminate this agreement if the other Party has materially breached its obligations under this Agreement and such breach is not cured in fifteen (15) days, upon thirty (30) days written notice (the “Termination Notice”) by one Party to the other Party or immediately if one Party makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or for reorganization under the bankruptcy laws of the respective or if a petition is filed against it, or if a receiver or trustee is appointed for such Party.
14.2.Upon Death or Disability. This agreement will be terminated upon the death or permanent disability of the contractor.
14.3.Effect of Termination
14.3.1 Survival of Certain Sections and Payment Obligations. The provisions of this Section 15; Section 8 (General Provisions); Section 11 (Confidentiality); Section 12 (Intellectual Property and Ownership); Section 13 (Limitation on Liability); and any payment obligation that has accrued and is owed by Client to another Contractor but has not been paid prior to the termination of this Agreement, shall survive the termination of this Agreement.
14.3.2 Payment Upon Termination and Return of Client Property. The Parties expressly agree that if this Agreement is duly terminated in accordance with this Section 14, within thirty (30) days of such termination: Client shall immediately pay all outstanding invoices and the further agrees to pay the reasonable value of all work in progress as of the date of any such notification, and any costs or expenses which Contractor may incur as a result of the premature cancellation of the Agreement.
15.1 The description of work in following are intended only to be used as a guide, helping defining the prices for the work carried out. The final price will be a judgment of the Funktionel APS management based on the statement of work (SOW) provided by the costumer. If the SOW is not correct or additional work has to be carried out, Funktionel APS is reserving all rights to adjust the prices on the final invoice accordingly.
Funktionel APS’s reserves the right to change these descriptions at any time without prior notice. In the event that any changes are made, the revised descriptions shall be posted on the company website immediately. If in doubt please contact your Funktionel APS representative for the correct pricing.
15.1.1. Commissioning. In the terms of this description, commissioning is considered the procedures of checking, inspecting and testing every operational component of the unit (specified in the SOW) from individual functions, such as instruments and equipment to the whole unit as one system after the installation. Supervision and start-up assistance of the unit/equipment, training of operators and maintenance engineers or equal onsite training of staff and any minor control/automation related items done on the equipment during the commissioning are considered to be a part of the commissioning. At no time during any commissioning should any Funktionel APS employee, agent and/or representative be expected to work as an operator or maintenance engineer (or similar), the Funktionel APS employee, agent and/or representative are merely supervisors and advisers and is not responsible for any part of any production or maintenance.
15.1.2. Installation Supervision. Installation supervising is; directing, managing and guiding the installation of any equipment specified in the SOW in close corporation with the end costumer and other contractors involved in the work. The costumer must provide, or hire, any specialized workers and/or equipment like (but not limited to): welders, heavy equipment and operators (e.g. cranes), pipe fitters and electricians. These specialized workers and/or equipment will be under the sole responsibility of the costumer or contractor through which they are provided.
15.1.3. Control/Automation. Work that require advanced access to a automated control system like; programming, debugging and setup of any industrial control system and components acting as a part of this system.
15.1.4. Service on existing equipment. General service like normal maintenance, small improvements and installation of small individual components that does not require commissioning on existing equipment.
Major overhauls are not defined as service work, but will be charged as a rebuild.
15.1.5. Remote support. Technical support of any kind done via the telephone, mail or similar, or online support via the Internet on control systems (e.g. PLC’s), from a remote location, this will not include support done from the hotel when working for the same costumer as requiring support.
15.1.6. Rebuild of equipment. Any rebuild of existing equipment for maintenance purposes, this could includes, but not limited do any major overhauls which requires the whole machine to be taken apart and rebuild. If the rebuild requires specialized workers and/or equipment like (but not limited to): welders, heavy equipment and operators (e.g. cranes), pipe fitters and electricians. These specialized workers and/or equipment must be hired/provided by the costumer and will be under the sole responsibility of the costumer, unless agreed in a contract signed by all involved parties.
15.1.6. Production supervision. This would normally be and extension of the commissioning, where the costumer wishes to have some extra support during the first period of a production run. But it could also be for the purpose of evaluating the operation or the condition of the equipment. During the work with any supervising activities the Funktionel APS employee, agent and/or representative cannot be held responsible for any production loss that might occur, since the Funktionel APS employee, agent and/or representative are not trained in the costumers’ standards of production quality. The Funktionel APS employee, agent and/or representative is acting as a guide and can therefor only provide suggestions and guidance, the final approval/decision has to be made by the costumer.
15.1.7. Equipment Operator. If at any time a Funktionel APS employee, agent and/or representative is asked to run any equipment or any part of a production line, or equal, for commercial production due to a lack of qualified staff, understaffed production lines or if hired by the costumer for do so, the price for equipment operator applies. This also applies if the situation occurs during any commission, control or service work. During the work as an operator the Funktionel APS employee, agent and/or representative cannot be held responsible for any production loss that might occur, since the Funktionel APS employee, agent and/or representative are not trained in the costumers’ standards of production handling and/or quality requirements.
16.1 Privacy. Your privacy and the protection of personal data is important to us. We are aware that care and transparency are the basis for a trusting cooperative relationship. Being compliant with laws and regulatory requirements is just as important to us as the lawful and sensitive handling of your data. Funktionel APS. does not share any personal data with any third party without the consent by the data subject.
188.8.131.52 Personal data. Any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
184.108.40.206 Third party. A natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data.
220.127.116.11 Consent. Consent of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.
17.1 Publicity. Buyer agrees that Funktionel APS may disclose in the ordinary course of business buyer’s name and logo on the Funktionel APS’s customer list and website. For the work performed pursuant to this agreement, Buyer consents to Funktionel APS’s desire to publicize the award of this Agreement by creating a brief success story identifying the type of work performed, the Funktionel APS products and services used, location, industry and customer’s name for marketing purposes only.