Terms of sale

Terms of Sale

  • Definitions and Interpretation

    • Definitions
      In these Conditions, the following definitions apply:

"Business Day"; means any day from Monday to Friday (inclusive) which is​​ not a statutory holiday in either Wahlberg’s or the Customer’s country of domicile.

"Conditions"; the terms and conditions set out in this document as amended from time to time in accordance with clause​​ 12.6.

"Contract"; the contract​​ between Wahlberg and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

"Customer"; the person or firm who purchases the Goods from Wahlberg.

"Force Majeure Event"; has the meaning given in clause​​ 10.

"Goods"; the goods (or any part of them) set out in the Order.

"Order"; the Customer's order for the Goods, as set out in the Customer's purchase order form, the Customer's written acceptance of Wahlberg's quotation, or overleaf, as the case may be.

"Order Confirmation"; Wahlberg’s written acceptance of the Order.

"Specification"; any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and Wahlberg.

"Wahlberg"; Wahlberg Motion Design (registered in Denmark, DK28663455) whose registered office is at Jaegergaardsgade 160, 8000 Aarhus C, Denmark.

    • Construction
      In these Conditions, the following rules apply:

  • A​​ person​​ includes a natural person, corporate or unincorporated body (whether or not having separate​​ legal personality)

  • A reference to a party includes its personal representatives, successors or permitted assigns.

  • A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute​​ or statutory provision includes any subordinate legislation made under that statue or statute or statutory provision, as amended or re-enacted.

  • Any phrase introduced by the terms​​ including, include, in particular​​ or any similar expressions shall be constructed as illustrative and shall not limit the sense of the words preceding those terms.

  • A reference to​​ writing​​ or​​ written​​ includes faxes and emails.

  • Basis of contract

    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.

    • The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

    • The Order shall only be deemed to be accepted when Wahlberg issues an Order Confirmation, at which point the Contract shall come into existence.

    • The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Wahlberg which is not set out in the Contract.

    • Any samples, drawings, descriptive matter, or advertising produced by Wahlberg and any illustrations contained in Wahlberg's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

    • A quotation for the Goods given by Wahlberg shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.​​ The offer is signed when the buyer accepts in​​ writing via mail or letter.

  • Goods

    • The Goods are described in the Specification.

    • Wahlberg reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

  • Delivery

    • Wahlberg shall ensure that:

  • Each delivery of​​ the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

  • If Wahlberg requires the Customer to return any packaging materials to Wahlberg, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Wahlberg shall reasonably request. Returns of packaging materials shall be at Wahlberg's expense.

    • Wahlberg shall deliver the Goods to the location set out in​​ the Order Confirmation or such other location as the parties may agree ("Delivery Location") at any time after Wahlberg notifies the Customer that the Goods are ready.

    • Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.

    • Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Wahlberg shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Wahlberg with adequate delivery instructions, work task, upfront payment, or any other instructions that are relevant to the supply of the Goods.

    • If Wahlberg fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Wahlberg shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Wahlberg with adequate delivery instructions, work task, upfront payment, or any other instructions that are relevant to the supply of the Goods.

    • If the Customer fails to accept delivery of the Goods within​​ three (3) Business Days of Wahlberg notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Wahlberg's failure to comply with its obligations under the Contract:

    • Wahlberg may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

    • If special custom papers or extraordinary actions are required from Wahlberg before shipping outside EU, the handling fee is​​ 80 euros pr. hour.

 

 

  • Quality​​ and Warranty​​ 

    • The warranty is 1 year from the invoice date.​​ 

    • Wahlberg warrants that on delivery the Goods shall:

  • Conform in all material respects with the Specification;

  • Be free from material defects in design, material, and workmanship;

  • Be fit for any purpose held out by Wahlberg; and​​ 

    • Subject to clause​​ 5.4, if:

  • The Customer gives notice in writing​​ to Wahlberg immediately after discovery that some or all of the Goods do not comply with the warranty set out in clause 5.2;

  • Wahlberg is given a reasonable opportunity of examining such Goods; and

  • The Customer (if asked to do so by Wahlberg) returns such Goods to Wahlberg's place of business at the Customer's cost, Wahlberg shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

  • If the customer wish to return a product for any reason, the customer must fill out a RMA-form provided by Wahlberg, in which the customer states the reason for the return.​​ 

  • If the customer is located outside of the European Union, they must provide all necessary documents for the goods to arrive at Wahlberg. Any taxes or additional expenses for the return are paid by the customer.​​ 

    • Wahlberg shall not be liable for Goods' failure to comply with the warranty set out in clause​​ 5.1​​ in any of the following events:

  • The Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;

  • The defect arises because the Customer failed to follow Wahlberg's oral or written instructions as to the storage, commissioning, installation, use, and maintenance of the Goods or (if there are none)​​ good trade practice regarding the same;​​ 

  • The defect arises as a result of Wahlberg following any drawing, design, or Specification supplied by the Customer;​​ 

  • The Customer alters or repairs such Goods without the written consent of Wahlberg;

  • The defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or

  • The Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

 

    • Except as provided in this clause​​ 5, Wahlberg shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.2.

    • Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

    • These Conditions shall apply to any repaired or replacement Goods supplied by Wahlberg.

    • In the case that Wahlberg accepts the need​​ for on-site maintenance or service, travel expenses and accommodation for the technician is at the costumer’s expense. ​​ 

  • Title and risk

    • The risk in the Goods shall pass to the Customer on completion of delivery.

    • Title to the Goods shall not pass to the​​ Customer until Wahlberg has received payment in full (in cash or cleared funds) for:

  • The Goods; and

  • Any other goods or services that Wahlberg has supplied to the Customer.

    • Until title to the Goods has passed to the Customer, the Customer shall:

  • Notify Wahlberg immediately if it becomes subject to any of the events listed in clause​​ 8.2; and

  • Give Wahlberg such information relating to the Goods as Wahlberg may require from time to time, but the Customer may resell or use the Goods in the​​ ordinary course of its business.

    • If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause​​ 8.2, or Wahlberg reasonably believes that any such event is about to happen and​​ notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Wahlberg may have, Wahlberg may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

  • Price and Payment

    • The price of the Goods shall be the price set out in the Order Confirmation.

    • Wahlberg may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:​​ 

  • Any factor beyond Wahlberg's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, and other manufacturing costs);

  • Any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

  • Any delay caused by any instructions of the Customer or failure of the Customer to give Wahlberg adequate or accurate information or instructions.

    • The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

    • The price of the Goods is exclusive of amounts in respect of value added tax ("VAT"). The Customer shall, on receipt of a valid VAT invoice from Wahlberg, pay to Wahlberg such additional amounts in respect of VAT as are chargeable on​​ the supply of the Goods.

    • Wahlberg may invoice the Customer for the Goods on ordering or at any time before delivery of the Goods.

    • The Customer shall pay the invoice in full and in cleared funds before shipment of the Goods. Payment shall be made to the bank account nominated in writing by Wahlberg. Time of payment is of the essence.

    • If the Customer fails to make any payment due to Wahlberg under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate​​ of 1,5% per month. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.​​ 

    • The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Wahlberg in order to justify withholding payment​​ of any such amount in whole or in part. Wahlberg may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Wahlberg to the Customer.​​ 

  • Customer’s insolvency or incapacity

    • If the Customer becomes subject to any of the events listed in clause​​ 8.2, or Wahlberg reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Wahlberg, Wahlberg may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Wahlberg without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.​​ 

    • For the purposes of clause​​ 8.1, the relevant events are:

  • The Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its​​ debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, or (being a partnership) has any partner to whom any of the foregoing apply;

  • The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a​​ proposal for or enters into any compromise or arrangement with its creditors;

  • (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer​​ with one or more other companies or the solvent reconstruction of the Customer;​​ 

  • (being an individual) the Customer is the subject of a bankruptcy petition or order;​​ 

  • A creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;​​ 

  • (being a company) an application is made to court, or an order​​ is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;​​ 

  • (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;​​ 

  • A person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;​​ 

  • any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause​​ 8.2(i) to clause​​ 8.2(viii) (inclusive);​​ 

  • the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;​​ 

  • the Customer's financial position deteriorates to such an extent that in Wahlberg's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and​​ 

  • (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

    • Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of​​ the Contract shall continue in full force and effect.

  • Limitation of liability

    • Subject to the provisions of this Condition 9, in the case of Goods not of Wahlberg’s manufacture, whether they constitute or form part of Goods supplied by Wahlberg, all liability whatsoever on Wahlberg part, save liability for death or personal injury resulting from our negligence, is hereby expressly excluded, and without prejudice to the generality of the foregoing, all such liability for loss and damage howsoever arising whether caused directly or consequentially is hereby excluded, but Wahlberg shall use all reasonable endeavours to ensure that any benefit available to Wahlberg in respect of Goods supplied to Wahlberg is made available to the Customer. Except as set out in these Conditions, all conditions, warranties and representations express or implied by statute, law or otherwise in relation to the supply or delay in supplying the goods/services are excluded to the fullest extent permitted by law.

    • In the case of Goods of​​ Wahlberg’s own manufacture, Wahlberg shall make good (at Wahlberg’s option) by repair or replacement of the Goods, any defects which after proper use appear in the Goods within such warranty period, if any, as has been agreed between Wahlberg and the Customer in writing. This warranty is limited to defects which arise solely from faulty design materials or workmanship on Wahlberg’s part provided always that defective Goods or parts of Goods are promptly returned by the Customer at the Customer´s expense to​​ Wahlberg’s works unless otherwise agreed in writing. Where by agreement with the Customer, Wahlberg cause one of Wahlberg’s servants or agents to carry out work or repair or replacements at the Customer´s premises, Wahlberg shall have the right to charge for the whole or any part of the cost and overheads involved in such additional services which shall be payable on invoice.

    • Wahlberg shall not be liable, either in part or in full, for any claim whatsoever for failure of products or fabrications to meet​​ specifications or performance criteria of any form or type. It is the customer´s sole responsibility to determine that use of the Goods, supplied by Wahlberg is fit for the purpose to which the Customer put them.

    • Wahlberg shall not be liable in any manner​​ whatsoever to the Customer for any loss of profit, market or contract or for any consequential loss sustained or alleged to be sustained by the Customer.

    • In the event of incomplete delivery arising otherwise than through loss or damage in transit, Wahlberg​​ shall be under no liability whatsoever unless Wahlberg receive notification of all relevant details within three days of the delivery of the Goods and/or Services, followed by confirmation in writing within seven (7) days of delivery.

    • Nothing in these Conditions shall limit or Wahlberg’s liability for:​​ 

  • Death or personal injury caused by its negligence, or the negligence of Wahlberg employees;​​ 

  • Fraud or fraudulent misrepresentation;​​ 

  • Any matter in respect of which it would be unlawful for Wahlberg to exclude or restrict liability.​​ 

    • Subject to clause​​ 9.6:​​ 

  • Wahlberg shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and​​ 

  • Wahlberg's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.

  • Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A​​ "Force Majeure Event"​​ means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

  • Confidentiality

    • The Customer shall treat all product, business information, drawings, designs, and specifications submitted by Wahlberg to the Customer as confidential and shall not disclose them to any third party without Wahlberg’s prior written consent or use them for any purpose except where authorised to do so by Wahlberg. This Condition does not apply to information which:

  • Is at the date of disclosure or​​ becomes at any time after that date publicly known other than by the Costumer’s​​ breach of this Condition;

  • Can be shown by the Costumer to our satisfaction to have been known by the Costumer before disclosure by Wahlberg to the Customer;

  • Is or becomes​​ available to the Customer otherwise than from Wahlberg and free of any restrictions as to its use or disclosure; or

  • Is required to be disclosed by law.

  • General

    • Assignment and subcontracting

  • Wahlberg may at any time assign, transfer, charge, subcontract or​​ deal in any other manner with all or any of its rights or obligations under the Contract.

  • The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Wahlberg.​​ 

    • Notices

  • Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is company) or its principal place of business​​ (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax, or e-mail.

  • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause​​ 12.2(i); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

  • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

    • Severance

  • If any court or competent authority finds that any provision of the Contract (or part of ​​ any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.​​ 

  • If any invalid, unenforceable, or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.

    • Waiver

A waiver of any right or remedy under the Contract is only effective if​​ given in​​ writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor​​ shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

    • Waiver

Third party rights.​​ A person who is not a party to the Contract shall not have any rights under or in connection with it.

    • Variation

Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall​​ only be binding when agreed in writing and signed by Wahlberg.

    • Governing law and jurisdiction

The Contract and any dispute or claim arising out of or​​ in connection with it or its subject matter shall be governed by and construed in​​ accordance with Danish law. The parties irrevocably agree that the courts of Denmark shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.

 

 

Wahlberg Motion Design, Jaegergaardsgade 160, DK-8000 Aarhus C, Tel: +45 8618 1420, sales@wahlberg.dk