1. General
1.1 These general terms and conditions (the “General Terms”) apply to Weilbach’s provision of all types of products (the “Products”), including but not limited to software, data and support services to any customer being either a partner, re-seller and/or end user (“Customer”) unless otherwise explicitly agreed in writing.
1.2 These General Terms constitute an appendix to the agreement entered into between the parties, including any subsequent order forms (“Agreement”).
1.3 A specific order agreed under any Agreement shall be deemed an independent Agreement under these General Terms.
2. The Products
2.1 The Products are specified in the Agreement which contains an exhaustive specification hereof as well as any requirements relating hereto. The Products shall not include installation, support or integration, unless set out in the Agreement.
2.2 Information provided by Weilbach in brochures, price lists, advertisements, previous quotations, on the internet or verbally is applied to the Products if explicitly included in the Agreement.
3. Delivery and Time of Delivery
3.1 Any agreed delivery dates are specified in the Agreement. If no delivery date is specified, either party may, with a reasonable prior written notice, request provision of the Products.
3.2 Unless otherwise agreed, all Products shall be delivered Ex-Works (Incoterms 2010) (“Time of Delivery”). Unless otherwise specified, the risk of the Products will pass to Customer upon Time of Delivery.
4. Return of Products
4.1 Unless otherwise agreed, to obtain a refund, any Product must be returned by the Customer and received by Weilbach within twenty-one (21) days from invoice date. The Product must be returned in its original and resalable condition in order to be accepted as a return. The Product must be accompanied by the delivery note, all packaging, and any related accessories. No refund will be processed for Products that are returned incomplete or damaged.
4.2 Notwithstanding the above, unless they are faulty, Print on Print on Demand and digital Products cannot be returned.
5. Use of Sub-suppliers
5.1 Weilbach is entitled to use sub-suppliers in the performance of the Agreement.
5.2 Weilbach is responsible for the services performed by its sub-suppliers, as if provided by Weilbach itself.
6. Third Party Material
6.1 Customer accepts that the Products may consist of third-party material, including software, hardware and/or data in part or in full. Such material may be subject to license or standard terms that Customer shall accept prior to provision of the Products. The terms are deemed to be accepted by Customer upon Customer's acceptance of the Agreement.
6.2 A Party delivering third-party material in accordance with this Clause 5 shall not be deemed a sub-supplier in accordance with Clause 4.
6.3 Weilbach assumes no liability for the availability or functionality of third-party material. Such are subject only to the Licenses and/or standard terms hereof. Weilbach’s sole responsibility regarding third-party material shall be to notify Weilbach’s point of contact of any error reports from Customer.
6.4 The Products may display, include or make available content, data, information, applications or other material from a third-party or provide links to third-party websites. Weilbach is not responsible for the content, accuracy, timeliness, quality etc. of such third-party material incl. navigation data, and assumes no liability for the availability or content of such material.
7. Remuneration and Terms of Payment
7.1 General Principles
7.1.1 Unless otherwise specified in the Agreement, the Products are invoiced in accordance with Weilbach’s general applicable price list.
7.1.2 Changes in currency rates, charges, purchase prices from sub-suppliers, insurance and carriage entitle Weilbach to further adjust its prices by the net impact of such changes without notice.
7.1.3 Weilbach is entitled to change and/or amend any price or price list applicable to the Products for the future with a prior notice of 30 days.
7.2 Invoicing
7.2.1 Unless otherwise agreed, Weilbach is entitled to invoice Customer upon Time of Delivery for any Product.
7.2.2 The terms of payment are according to invoice.
7.2.3 Fees are stated exclusive of any VAT or other taxes and duties.
7.2.4 Each Party is fully responsible for its own compliance with all applicable laws and regulations concerning registration, reports and payments of taxes and VAT rendered on the Products.
7.2.5 Upon late payments by more than 30 days, Weilbach is entitled to suspend and withhold the Products or parts thereof.
7.2.6 Weilbach is entitled to interests on all overdue payments in accordance with applicable law.
8. Defects
8.1 The Product will perform substantially as described in the Agreement and the original user documentation provided for the Products. The Products are however neither fault tolerant nor free from errors, conflicts or interruptions. Deviations must thus be expected to some extent and such do thus not constitute defects.
8.2 Defects may at the sole discretion of Weilbach be remedied by remediation, replacement or repayment of the fee for the defective Product.
9. Limitation of Liability
9.1 In no event and no matter the circumstances shall Weilbach be liable for any indirect, incidental or consequential damages or loss, including but not limited to loss of anticipated profit, loss of data, damage to records or data, loss of goodwill, or loss as a consequence of any kind of business interruption arising out of or in connection with the Agreement, performance of the Products and the results connected thereto.
9.2 Weilbach’s aggregate liability to Customer in respect of any matters arising out of or in connection with the Agreement, shall be limited to an amount corresponding to all payments made under the Agreement for the period of 12 months prior to the event(s) having given rise to the claim. The liability shall in all circumstances be limited to a maximum of USD 2,000 per Order.
9.3 Weilbach assumes product liability in accordance with applicable mandatory legislation. Beyond this, Weilbach assumes no product liability.
9.4 Weilbach does not assume any responsibility or liability for the Products other than what has been expressly set out in the Agreement. Any warranties, representations, guarantees or conditions whether express or implied are excluded to the fullest extent permitted by law. This means that e.g. warranties of merchantability, fitness for a particular purpose and liability for error in data or information included in the Products are excluded.
9.5 Irrespective of the above, Weilbach’s liability shall not be limited or excluded in case of claims for infringement of intellectual property rights, gross negligence or willful misconduct and breach of clause 13.
10. Intellectual Property Rights
10.1 For digital products Weilbach grants Customer a time-limited, non-exclusive and non-transferable right to use the Products during the term of the Agreement, unless otherwise set out in the Agreement or a separate End User License Agreement (EULA). All rights are reserved by Weilbach (or its licensors).
11. Term and Termination
11.1.1 The Agreement cannot be terminated for convenience by any party, unless otherwise expressly set out in the Agreement.
11.1.2 Each party shall be entitled to immediately terminate the Agreement for cause:
a) if the other party commits a material breach of the Agreement, and such material breach has not been remedied within 30 days of receipt of a written notice from the non-breaching party to do so,
b) if the other party commits a material breach of the Agreement, which is not capable of remedy;
c) in the event of bankruptcy of the other party, subject to the right of the bankruptcy estate to enter the Agreement to the extent permitted under the Danish Insolvency Act, ord) to the extent required to do so by law.
11.1.3 Termination for any reason shall have effect for the future only, and no payments already made to Weilbach shall be repaid.
12. Force Majeure
12.1 Neither party shall be held liable for any damage sustained by the other party as a direct or indirect consequence of the non-performing party being delayed, prevented or hindered in the performance of its obligations under the Agreement as a result of a force majeure situation. Force majeure situations include war, mobilization, viruses, cyber-attack, navigation errors, catastrophes of nature, strikes, lock-out, fire, damages to production plant, import and export regulations and other unforeseeable circumstances beyond the control of the party concerned.
13. Data and Security
13.1 Customer holds any and all rights, including intellectual property rights to Customer’s data, irrespective of whether such data are included in the Products.
13.2 To the extent Weilbach processes personal data on behalf of Customer (data processor), Weilbach only acts in accordance with the instructions of Customer and the parties shall enter into a data processing agreement on Weilbach’s standard terms.
13.3 Weilbach may anonymize data. Such anonymized data may be used, without the instructions of Customer and for Weilbach’s own purposes.
13.4 Customer is responsible for proper backup of Customer’s data, unless otherwise agreed.
13.5 The Weilbach Personal Data Protection Policy applies to the Agreement.
14. Confidentiality
14.1 Each party shall observe complete confidentiality regarding any information and documentation etc. about the other party in every respect as obtained in relation to the Agreement and the Products. This Clause shall apply regardless of termination of the Agreement for whatever reason.
15. Assignment
15.1 The parties may only assign rights and obligations within the Agreement to a third-party with the other party’s prior written approval.
15.2 Regardless of Clause 14.1, but subject to any third party terms cf. Clause 5, each party is entitled to assign rights and obligations within the Agreement to an affiliated company. In this case, the assigning party is still responsible for fulfillment hereof.
16. Governing Law and Disputes
16.1 The Agreement is governed by and construed in accordance with Danish law except for a) rules leading to the application of other law than Danish law and b) the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.2 Any dispute controversy or claim arising out of or related to the Agreement shall be settled by a competent court at Weilbach’s venue in Denmark.