1.1 These general conditions for the supply of products and services (the “General Conditions”) are an integral part of any sales and/or supply agreement (the “Contract”) and set out the conditions for all supplies of products and services (together the "Product") by either WISELED ApS and/or any subsidiary/affiliate hereof ("WISELED"), unless otherwise agreed in writing.
1.2 In case of any discrepancy or inconsistency between the Contract and these General Conditions, the Contract shall take precedence over these General Conditions.
1.3 WISELED is only obliged pursuant to information and data included in the Contract and in these General Conditions. For the avoidance of doubt, information and data contained in products, brochures, price lists or any other documents are binding on WISELED if such information or data are expressly incorporated into the Contract.
2. RULES AND REQUIREMENTS
2.1 Any rules and/or requirements in respect of the Product laid down by any public authority shall be expressly referred to in the Contract or otherwise such rules and/or requirements are not binding in the relationship between WISELED and the customer. The customer shall bear the risk of any amendments to such rules and/or requirements after entering into the Contract. If such rules and/or requirements are amended after entering into the Contract, WISELED will at the request of the customer, but subject to price adjustments, undertake reasonable endeavours to change the Product accordingly, but nothing herein shall be construed as an obligation on WISELED to make such change.
3. Terms of PAYMENT
3.1 Subject to clause 3.2, the purchase price agreed in the Contract shall be paid on the delivery date.
3.2 Unless otherwise agreed in writing, the customer shall transfer a pre-payment in advance of delivery of the Product constituting [X]% of the purchase price agreed in the Contract.
3.3 Payment shall be deemed to have been made when the full outstanding amount has been irrevocably credited to the bank account of WISELED.
3.4 If the customer fails to make payment by the due date for the payment, WISELED shall be entitled to charge interests from the day on which payment was due on the overdue amount at the rate of 12% plus CIBOR (the Copenhagen Interbank Offered Rate) per annum. Such interest shall accrue on a daily basis from the due date for payment until date of actual payment of the overdue amount, whether before or after judgment.
3.5 Furthermore, WISELED may at its sole discretion suspend performance of any of its obligations under the Contract until full and effective payment has been made, provided however, that WISELED forthwith gives reasonable notice of the suspension to the customer.
3.6 However, any failure by the customer to make timely payment shall be deemed a fundamental breach of the Contract and the General Conditions entitling WISELED to terminate the Contract and to claim damages for the loss incurred.
4.1 Time of delivery
4.2 WISELED will deliver the Product no later than the date agreed in the Contract. If no time of delivery is agreed, delivery will be made on a date deemed reasonable by WISELED.
4.3.1 Any trade term agreed in the Contract shall be construed in accordance with INCOTERMS 2010.
4.3.2 WISELED shall deliver by Ex Works (INCOTERMS 2010), unless otherwise agreed in writing.
4.3.3 WISELED shall be permitted to deliver by instalments, unless otherwise agreed in writing.
4.4.1 If any delivery from WISELED is delayed in relation to the agreed delivery date and WISELED receives notice hereof from the customer, or if WISELED anticipates that a delay will occur in relation to the agreed delivery date, WISELED shall forthwith give a notice containing i) the reason for the delay or the anticipated delay and ii) an additional period of time of reasonable length during which delivery will be made. If WISELED does not deliver within this new stated additional period of delivery time, the customer is entitled to terminate the Contract in whole or in part.
4.4.2Termination of the Contract shall be the sole and exclusive remedy available in case of delay on the part of WISELED and in no event shall WISELED be liable for any costs, fees, penalties, damages or price reductions as a result of any failure to deliver the Products in accordance with any delivery date.
4.5.1 If the customer anticipates that it will not take delivery of the Product at the agreed delivery time, the customer shall forthwith notify WISELED thereof including the reason hereof and the time when it will be able to take delivery.
4.5.2 WISELED may in connection with such refusal state a final period of time of reasonable length to take delivery. If the customer fails to take delivery within such period, WISELED may terminate the Contract in whole or in part.
4.5.3 In addition, WISELED shall in any case be entitled to liquidated damages equal to 10 per cent of the purchase price stated in the Contract. In the event that WISELED incurs a loss in excess of 10 per cent of the purchase price, the customer shall indemnify WISELED for any such loss.
4.5.4 Furthermore, the customer shall in case of not taking delivery, pay such part of the purchase price as becomes due on delivery as if delivery had taken place in accordance with the agreed delivery date. WISELED shall arrange storage of the Product at the risk and expense of the customer.
4.6.1 The risk for the Products delivered to the customer shall pass to the customer when WISELED has delivered the Products in accordance with this clause 4.
4.7 Retention of title
4.7.1 Subject to clause 7, all Products shall remain the property of WISELED until full and effective payment has been made. The retention of title shall not affect the passing of risk.
5.1 Neither WISELED or the customer shall be liable for any delay or to perform due to fire, flood, strike, labour difficulty, acts of God, acts of any governmental authority, riot(s), embargo, fuel or energy shortage(s), wrecks or delays in transportation, inability to obtain necessary labour, materials, or manufacturing facilities from usual sources, or due to any cause beyond such party’s reasonable control (together a “Force Majeure”).
5.2 In the event of a delay in performance due to Force Majeure, the delivery date will be extended for a period of time reasonably necessary to overcome the effect of such Force Majeure. If WISELED reasonably determines that any such delay is likely to extend for a period of thirty (30) calender days or more, WISELED shall have the right to cancel the applicable Product order upon written notice to the customer with no liability or further obligation to WISELED with respect to such order.
6.1 Notwithstanding other provisions in these General Conditions regarding suspension, either WISELED or the customer shall be entitled to suspend the performance of its obligations under the Contract, where it is clear from the circumstances that the other party will not perform its obligations. The party suspending its performance of the Contract shall forthwith notify the other party thereof in writing.
7.INTELLECTUAL PROPERTY RIGHTS
7.1 Any and all intellectual property rights connected to the Products or other services provided by WISELED, including patents, drawings, technical descriptions, trademarks, domain names, digital platforms or media, copy rights, design rights, software, trade secrets, and knowhow, belong to WISELED with all rights reserved. Such intellectual property rights shall only be used for the purpose for which they are provided and may not be copied or communicated to any third party without WISELED’s prior written consent.
8.1 Unless otherwise agreed in writing, WISELED provides the following warranties in relation to the Products:
12 months from the delivery of the Product to the customer; and
24 months from the from delivery of the Product to the end user.
For the avoidance of doubt, the customer agrees that the warranty period for a WISELED Product can never exceed a period of 36 months from the time of delivery of the Product.
8.2 WISELED undertakes to remedy any defect or non-conformity resulting from faulty design, materials or workmanship in a Product (a "Defect").
8.3 The customer shall inspect the Product within 10 calendar days after delivery if reasonably possible.
8.4 In case of any Defect, the customer shall give written notice to WISELED immediately after the Defect has been or ought to have been discovered. The notice shall specify the nature of the Defect and the ID number or barcode number on the packaging. In case that such numbers are not available, a WISELED invoice must be used as documentation that the Product was purchased from WISELED.
8.5 The customer shall give WISELED notice of any Defect no later than 9 months from the date when the customer’s product, in which the Product is installed, is put into operation, and always within 15 months from the date of delivery of the Product by WISELED. If timely notice is not given, the customer loses the right to claim any Defect.
8.6 WISELED may at its sole discretion choose either repair any defective Product or to deliver a substitute Product.
If a Defect occurs in a Product, the customer shall contact its WISELED support by phone or e-mail and provide WISELED with necessary information regarding the Product. The customer shall carry out diagnostics as advised by WISELED support and comply with any reasonable instructions for service. WISELED support will try to remedy the Defect or advice the customer to send the Product to WISELED or another third-party according to WISELED’s instructions.
Any delivery of a substitute Product will be made at the original agreed place of delivery of the Product.
8.7 If WISELED has not delivered a substitute Product or repaired a defective Product within a reasonable time after having received notice of the Defect, the customer shall by written notice to WISELED fix an additional period of time of reasonable length for WISELED to deliver a substitute Product or repair the Product.
8.8 If WISELED fails to deliver a substitute Product or repair the Product within the additional period of time fixed by the customer, the customer shall be entitled to either:
a) a proportionate price reduction up to 10 per cent of the purchase price; or
b) terminate the Contract provided that the Defect constitutes a fundamental breach by WISELED.
8.9 A defective Product, or parts thereof, that has been replaced by WISELED shall be made available to WISELED and shall be its sole property.
8.10 WISELED shall not liable for any damage arising out of any use of the Product not in accordance with the conditions of operation provided for in the Contract or any other improper use of the Product. Neither for any damages caused by lack of or faulty maintenance, incorrect installation or faulty repair by the customer or by any alteration carried out without WISELED’s written consent. WISELED is not liable for normal wear and tear or deterioration.
8.11 The remedies provided for in this clause 8 shall be exclusive and are in lieu of all other warranties whether written or oral. Exempt are such warranties implied from the specifications agreed upon in the Contract and warranties required by mandatory applicable laws.
9.1 WISELED's liability for death or injury to persons or for damage to real or personal property caused by Defects in the Product shall be limited to the liability prescribed by the mandatory rules of EU product liability legislation.
9.2 WISELED shall not be liable for any damage to real or personal property caused by the Product after it has been delivered and whilst it is in the possession of the customer.
9.3 WISELED shall have no liability for any personal injury, property damage or other loss based on the use of the Product in combination with or integrated into any other instrument or device (whether such instrument or device belongs to the customer or a third-party).
9.4 If WISELED incurs liability towards any third party for any damage as described in the preceding clauses, the customer shall indemnify, defend and hold WISELED harmless.
9.5 If a claim in connection with such damage and/or injury as described in the four preceding clauses is lodged by a third party against WISELED or the customer, the latter party shall forthwith inform the other party thereof in writing. WISELED and the customer shall be mutually obliged to let themselves be summoned to a court or arbitral tribunal, examining claims for damages lodged against one of them on the basis of damage allegedly caused by the Product, always provided that such claims are based on the liability prescribed by the mandatory rules of EU product liability legislation.
10.limitation on liability
10.1 There shall be no liability for either party towards the other party for any punitive, indirect, special, exemplary or consequential damage including, but not limited to, any consequential losses arising out of loss of production, loss of profit, loss of use, loss of earnings, loss of goodwill or loss of contracts.
10.2 If WISELED is held liable, whether directly or indirectly, for any loss or damage arising under the Contract, these General Conditions or otherwise, regardless of cause or origin, WISELED’s maximum liability shall not in any case exceed the purchase price stipulated in the Contract, which shall be the complete and exclusive remedy against WISELED.
11.1 Export control regulations
11.1.1 The customer shall comply with all applicable laws, regulations and treaties relating to the sale and destination of the Products, including, without limitation, U.S. and European export control regulations. The customer agrees not to sell any of the Products in any territory or country prohibited by applicable laws and to obtain representations from its own business partners and collaborators that they will not resell or transfer any of the Products to such countries or territories. The customer will defend, indemnify and hold WISELED harmless for any damages or costs to WISLED arising from the customer’s failure to comply with this clause.
11.2.1 These General Conditions and the rights of the customer hereunder may not be assigned in whole or in part without the prior written consent of WISELED.
11.3.1 WISELED shall, while always taking the individual customers business into consideration, have the right to use the customer’s name and/or trademark on its website and other promotional materials in connection with the advertising, marketing and promotion of WISELED and WISELED products. If relevant, the customer consents to such use by WISELED, without any payment or additional consideration, and holds WISELED harmless and releases WISELED from all claims, demands and causes of action which may arise out of any such use.
12.1 WISELED and the customer shall keep confidential any information received from the other party and pertaining to the Product or the Contract, always provided that the information received is not within the public domain.
13.1 WISELED reserve the right to change these General Conditions to the extent necessary. Current terms will always be available on WISELED’s website. Adjusted or changed terms will only apply to orders made after adjustments or changes has come into force.
14.APPLICABLE LAW AND DISPUTES
14.1 These General Conditions, and any contractual relationship between WISELED and the customer in connection herewith, shall be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) and with regard to issues not governed by CISG by the substantive laws of Denmark.
14.2 Any dispute or claim arising out of or in connection with these General Conditions and any contractual relationship between WISELED and the customer in connection herewith shall be settled in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration) by a sole arbitrator appointed by the Institute in accordance with the said rules.
14.3 The decision of the arbitrator shall be final and binding upon the parties. The place of arbitration shall be Copenhagen. The language of the arbitration shall be the English language.
14.4 Notwithstanding the foregoing, WISELED may at its discretion require any such dispute to be settled before either the Maritime and Commercial Court of Copenhagen or any national court of a country in which the customer maintains a place of business.