General Terms and Conditions, October 2019
1. General information
1.1 Zybersafe ApS is an innovative, Danish company that specialises in designing product encryption solutions. Zybersafe ApS, company registration no. 36447753 (“Zybersafe”), focuses on designing security products that ensure the highest possible level of protection for data in motion. Zybersafe’s objective is to provide products that are easy to implement and can protect Zybersafe’s customers’ valuable and private information from wiretapping without compromising on performance.
2. These terms and conditions
2.1 These terms and conditions (“Terms” and/or “Agreement”), outlines the general terms and conditions regarding the customers and/or users (“Customer”) purchase and/or use of Zybersafe’s products or services (collectively (“Products”)). This Agreement forms a legally binding contract between Customer and Zybersafe. By submitting or signing a purchase order, sales quote and/or order form (collectively “Order Form”) the Customer agrees to these Terms and this shall constitute a binding agreement between Zybersafe and Customer.
2.2 Unless otherwise is agreed in writing signed by an authorized representative of Zybersafe, all purchase orders for Products shall be non-cancellable and non-returnable.
3. Zybersafe’s obligations
3.1 The Products to be delivered by Zybersafe to Customer under this Agreement consist of the purchased Product(s) mentioned in each specified Order Form.
3.2 Unless otherwise agreed in an Order Form, Zybersafe shall commence work and/or delivery of any orders for Product(s) upon (1) Zybersafe’s receipt from Customer of Order Form(s), (2) Zybersafe’s written acknowledgement of receipt of such Order Form(s), or (3) Zybersafe’s receipt of any and all payments due upon submission of any Order Form(s).
4.1 Customer must pay Zybersafe the purchase price and/or fees as specified on each Order Form. All payments shall be made in full without any deductions or rights to set off payments, unless otherwise agreed between the Parties in the relevant order confirmation.
4.2 Unless otherwise is agreed in an Order Form, Customer’s payment of an invoice issued under section 4.1 must take place no later than 30 calendar days after receipt of an invoice from Zybersafe.
4.3 Customer is responsible for all taxes related to Customer’s purchase of any Product and to the import of the Product, if applicable, to include but not limited to all sales taxes, value-added taxes, import taxes/customs/duties and any other similar taxes imposed by any governmental entity.
4.4 Customer agrees to pay interest in the amount of 2 % per month for any amounts due and owing under this Agreement that have not been paid in accordance with section 4.2 of these Terms. Customer agrees that any past due under clause 4.2 of these Terms shall be considered a material breach of this Agreement. Zybersafe shall provide Customer with written notice of such breach and a period of ten (10) days to cure the breach. If Customer does not cure such breach within the ten (10) day period, Zybersafe shall be entitled to recover from Customer any actual costs, including reasonable attorney’s fees Zybersafe incurs to remedy any breach of this obligation to pay. Additionally, at its option, Zybersafe shall have the right to suspend any deliveries of Products or discontinue any services until payment of any outstanding amount has been made in full.
5. Delivery of Product(s)
5.1 For each Order Form, Zybersafe will provide Customer with an estimated delivery date based upon the Product quantities being ordered.
6. Risk of Loss
6.1 Title to the Product(s) passes to Customer when the Product(s) are paid for in full. However, Zybersafe bears all responsibility for loss of or damage to the Products during initial shipment after purchase and until Products is delivered to Customer, unless Customer selects its own mode of shipping. In repair case that fall under the limited warranty in section 7 of these Terms, risk of loss is borne by Zybersafe for return of the Products and upon return to Customer, following repair, if possible.
7. Limited Warranties
7.1 Zybersafe warrants the Products against defects in materials and workmanship under normal use (the “Warranty”) for a period of twelve months (12) from the ship date of the Product(s). Unless as otherwise mandated by governing law, the Warranty Period does not restart if Customer receives a replacement device.
7.2 The Warranty does not apply: (a) to damage caused to the Products by accident, abuse, misuse, flood, fire, earthquake or other external causes; (b) to damage caused by operating the Products outside the permitted or intended uses described by Zybersafe; (c) to damage caused to the Products by service (including upgrades and expansions) performed by anyone who is not a representative of Zybersafe or authorized by Zybersafe; (d) to any of the Products that have been modified to alter functionality or capability without the written permission of Zybersafe; (e) to cosmetic damage to the Products; or (f) to normal wear and tear of the Products.
7.3 Zybersafe does not warrant that the Products will be free from vulnerability, intrusion, attack, or other damage. Zybersafe does not warrant that the operation of the Products will be uninterrupted or error-free. Zybersafe is not responsible for damage arising from failure to follow instructions relating to the Products’s use. This Warranty does not apply to: (a) consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship; (b) cosmetic damage; (c) damage caused by accident, abuse, misuse, neglect or failure to properly maintain or improper installation; (d) damage caused by electrical disturbances or acts of God, to include but not limited to civil disturbance, war, flood, fire, rodents or insects; or (e) where manufacturer’s serial numbers have been removed from the Products.
7.4 Section 7 of these Terms constitute Zybersafe’s full and complete warranty for the Product(s), and states Customer’s exclusive remedies. No warranty is made that any of the Product(s) provided by Zybersafe work in combination with any products or applications software products provided by third parties not identified in any Work Order for which the Product(s) is intended to work, that the operation of the Product(s) will be uninterrupted or error free, or that all defects in the Product(s) will be corrected.
7.5 If the Products arrives to Customer damaged or defective at initial delivery, Customer must notify Zybersafe Customer Support at firstname.lastname@example.org within 10 days from the delivery date of the condition of the Product(s) and obtain return instructions if needed. Product(s) must then be returned immediately to Zybersafe for repair or replacement at Zybersafe’s discretion. Zybersafe will then arrange for delivery of temporary or permanent replacement Product(s). Customer is responsible for properly packing the return shipment of the Product(s). Zybersafe will arrange for shipping and insurance. If Customer fails to notify Zybersafe within 10 days of the delivery date, Customer will bear the cost of repairing or replacing the Product(s) including any shipping and insurance costs.
8. Limitation of Liability
8.1 To the extent permitted by law, Zybersafe’s liability under this Agreement or any Order Form to a total maximum of the lowest of either; 1) the amount paid by Customer to Zybersafe under an Order Form; or 2) 20,000 EUR, unless such damages are caused by the Zybersafe’s wilful misconduct or gross negligence.
8.2 Neither party shall in any event be liable for any of the other party’s indirect damages, including but not limited to; legal costs; loss of use; loss of revenue; loss of actual or anticipated profits (including loss of profits on contracts); loss of the use of money; loss of anticipated savings; loss of business; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data or software programs; or any indirect or consequential loss or damage howsoever caused including the replacement of equipment and property, any costs of recovering, programming, or reproducing any program or data stored or used with the Products and any failure to maintain the confidentiality of data stored on the product.
9.1 The Product(s) may not be purchased for resale purposes by Customer unless Customer is a legal and authorized reseller of Zybersafe Product(s). Product(s) may not be resold, leased, loaned or gifted to another party without prior written consent by Zybersafe.
10.1 Customer must comply with all export laws and restrictions and regulations of any local government of the country or countries in which Customer resides, is doing business in, is exporting to or alike. Furthermore, Customer will not export, or allow the export or re-export of the Products in violation of any such restrictions, laws or regulations. Additionally, Customer agrees to comply with the above and represents and warrants that it is not located in, under the control of, nor a resident of any restricted country.
11.1 The parties undertake to keep confidential and not to divulge to any third party for the terms of this Agreement any confidential information, reports, records or other restricted documents concerning the other party or its activity which they have received or obtained in the framework of this Agreement. Each party shall ensure that its directors, employees, agents and other intermediaries are bound by and will honour a similar duty of confidentiality.
11.2 Upon termination or expiration of this Agreement for any reason whatsoever, each of the parties shall upon request immediately return to the other party any documents containing restricted information provided by the other party in the framework of this Agreement and shall effectively delete all of such restricted information which has been provided by the relevant party in electronic form, e.g. by email.
12. Other provisions
12.1 If any provision of this Agreement is held to be unenforceable for any reason, the legality or enforceability of the remaining terms shall not be affected or impaired. The failure of Zybersafe to act with respect to a breach of this Agreement by Customer or others does not constitute a waiver and shall not limit Zybersafe’s rights with respect to such breach or any subsequent breaches.
12.2 Zybersafe expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Customer may not assign, delegate or otherwise transfer (whether by operation of law or otherwise) this Agreement or any of Customer rights or obligations hereunder without the prior written consent of Zybersafe.
12.3 This Agreement and any Order Form(s) constitute(s) the entire understanding of the parties as to the subject matter hereof and supersedes all prior offers, agreements, arrangements, negotiations and understanding, written or oral between the parties relating to that subject matter. The terms agreed in an Order Form shall prevail any terms in this Agreement.
12.4 Any amendment to this Agreement (or to an Order Form issued hereunder, as the case may be), as well as any addition or omissions, can only be agreed in writing with the mutual consent of and duly signed by the Parties.
12.5 Clauses 8, 9, 11, 12 and 13 shall survive and continue in full force and effect in accordance with their terms notwithstanding the expiration or termination of this Agreement.
13. Governing law and dispute resolution
13.1 All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement as well as all tort matters and other matters of pre- and extra- contractual liability between the parties shall be governed by and construed in accordance with Danish law, without giving effect to any other choice of law or conflict-of-laws rules or provisions that would cause the laws of any jurisdiction other than Denmark to be applicable.
13.2 Any dispute concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be submitted to the exclusive jurisdiction of the Danish courts.