Terms & Conditions

 

Terms & Conditions of Sale

This website exclusively deals with sales to Business-to-Business customers.

1. Definitions and Interpretation

1.1 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 Axel Hruhns Vej 3, 8000 Aarhus C, Denmark.

1.2 Construction

In these Conditions, the following rules apply:

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

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

III. 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.

IV. 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.

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

2. Basis of Contract

2.1 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.

2.2 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.

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

2.4 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.

2.5 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.

2.6 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.

3. Goods

3.1 The Goods are described in the Specification.

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

4. Delivery

4.1 Wahlberg shall ensure that:

I. 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

II. 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.

4.2 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.

4.3 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.

4.5 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.

4.6 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:

4.7 Wahlberg may deliver the Goods by installments, 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.

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

5. Quality​​ and Warranty​​

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

5.2 Wahlberg warrants that on delivery the Goods shall:

I. Conform in all material respects with the Specification;

II. Be free from material defects in design, material, and workmanship;

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

5.3 Subject to clause​​ 5.4, if:

I. 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;

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

III. 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.

IV. 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.​​

V. 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.​​

5.4 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:

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

II. 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;​​

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

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

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

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

5.5 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.

5.6 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.

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

5.8 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.

6. Title and risk

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

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

I. The Goods; and

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

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

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

II. 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.

6.4 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.

7. Price and Payment

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

7.2 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:​​

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

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

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

7.3 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.

7.4 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.

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

7.6 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.

7.7 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.​​

7.8 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.​​

8. Customer’s insolvency or incapacity

8.1 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.​​

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

I. 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;

II. 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;

III. (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;​​

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

V. 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;​​

VI. (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;​​

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

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

IX. 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);​​

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

XI. 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​​

XII. (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.

8.3 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.

9. Limitation of liability

9.1 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.

9.2 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.

9.3 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.

9.4 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.

9.5 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.

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

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

II. Fraud or fraudulent misrepresentation;​​

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

9.7 Subject to clause​​ 9.6:​​

I. 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​​

II. 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.

10. 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.

11. Confidentiality

11.1 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:

I. 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;

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

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

IV. Is required to be disclosed by law.

12. General

12.1 Assignment and subcontracting

I. 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.

II. 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.​​

12.2 Notices

I. 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.

II. 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.

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

12.3 Severance

I. 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.​​

II. 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.

12.4 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.

12.5 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.

12.6 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.

12.7 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.

 

Terms & Conditions of Equipment Hire

1. Definitions and Interpretation

  • The definitions and rules of interpretation in this clause apply in the Contract:

“Business Day”; means any day from Monday to Friday (inclusive) which is not a statutory holiday in Denmark.

“Commencement Date”; the date that the Lessee takes Delivery of the Equipment.

“Conditions”; the terms and conditions set out in this document.

“Contract”; the contract between the Lessor and the Lessee for the hire of the Equipment in accordance with these Conditions.

“Delivery”; the transfer of physical possession of the Equipment in accordance with clause 5.

“Equipment”; the items of equipment listed in the Order Confirmation, all substitutions, replacements, or renewals of such equipment and all related accessories, manuals, and instructions provided for it.

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

“Lessee”; the person or firm who hires the Equipment from the Lessor.

“Order”; the Lessee's order for the Equipment, as set out in the Lessee’s order form, the Lessee's written acceptance of the Lessor's quotation, or overleaf, as the case may be.

“Order Confirmation”; the Lessor’s confirmation of the Lessee’s order.

Payment Schedule; the sums payable as set out in the Order Confirmation.

Site; the Lessee's premises as set out in the Order.

"Specification"; any specification for the Equipment, including any related plans and drawings, that is agreed by the Lessee and Lessor.

Rental Payments; the payments made by or on behalf of Lessee for hire of the Equipment.

Rental Period; the period of hire as set out in clause 3.

Total Loss; the Equipment is, in the Lessor's reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.

Trading Address; Jaegergaardsgade 160, 8000 Aarhus C, Denmark.

  • A person includes a natural person, corporate, or unincorporated body (whether or not having separate legal personality)
  • A reference to a company shall include any company, corporation or other body corporate wherever and however incorporated or established.
  • A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.
  • A reference to writing or written includes faxes and emails.

2. Equipment Hire

  • The Lessor shall hire the Equipment to the Lessee for use at the Site subject to the terms and conditions of the Contract.
  • The Lessor shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Lessee's quiet possession of the Equipment.

3. Rental Period

The Rental Period starts on the Commencement Date and shall continue for a period set out in the Order Confirmation unless the Contract is terminated earlier in accordance with its terms.

4. Rental Payments

  • The Lessee shall pay the Rental Payments to the Lessor in accordance with the Order Confirmation.
  • The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time described by the law.
  • All payments to be made by either party under the Contract shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.
  • If the Lessee fails to pay any Rental Payments or any other sums payable under the Contract by the due date for payment under the Contract then, without limiting the Lessor’s rights under clause 1, the Lessee shall pay interest on such sums for the period from and including the due date of payment up to the actual date of payment, whether before or after judgment. The interest shall be paid at the rate of two per cent (2%) per annum.

5. Delivery

  • The Lessee shall collect the Equipment from the Lessor's premises at the Trading Address or such other location as may be advised by the Lessor before delivery (Delivery Location).
  • If specified in the Order Confirmation that delivery of the Equipment shall be made to the Lessee, the Lessor shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Lessor, the Lessee's duly authorised representative shall sign a receipt confirming such acceptance.
  • Risk shall transfer in accordance with clause 7 of the Contract.

6. Installation

  • If specified in the Order Confirmation, the Lessor shall at the Lessee’s expense install as the case may be the Equipment at the Site. The Lessee shall procure that a duly authorized representative of the Lessee shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Lessee’s duly authorized representative shall sign a receipt confirming such acceptance.
  • To facilitate Delivery and installation, the Lessee shall at its sole expense provide all relevant, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously including the materials, facilities, access and working conditions.

7. Title, Risk, and Insurance

  • The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of the Contract).
  • The risk of loss, theft, damage, or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee ("Risk Period") until such time as the Equipment is redelivered to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:
    • Insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Lessor may from time to time nominate in writing;
    • Insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
  • Insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.
    • The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident, or damage to the Equipment or arising out of or in connection with the Lessee's possession or use of the Equipment.
    • If the Lessee fails to effect or maintain any of the insurances required under the Contract, the Lessor shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Lessee.
    • The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.

8. Lessee’s Responsibilities

  • The Lessee shall during the term of the Contract:
    • ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
    • take such steps (including compliance with all safety and usage instructions provided by the Lessor) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
    • maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted), and shall make good any damage to the Equipment;
      • make no alteration to the Equipment without the prior written consent of the Lessor;
      • neither remove the Lessor’s brands or labels from the Equipment nor attach or in any other way fix the Lessee’s own or other brands or labels to the Equipment;
      • keep the Lessor fully informed of all material matters relating to the Equipment;
      • keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without the Lessor's prior written consent;
      • permit the Lessor or its duly authorised representative to inspect or test the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
        • not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet, or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
        • not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Lessor in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that the Lessor may enter such land or building and recover the Equipment both during the term of the Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Lessor of any rights such person may have or acquire in the Equipment and a right for the Lessor to enter onto such land or building to remove the Equipment;
        • not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized, or taken, the Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages, and expenses incurred as a result of such confiscation;
        • not use the Equipment for any unlawful purpose;
        • ensure that at all times the Equipment remains identifiable as being the Lessor's property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
        • deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
        • not do or permit to be done anything which could invalidate the insurances referred to in clause 7.
  • The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify the Lessor on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Lessee to comply with the terms of the Contract. 

9. Warranty

  • The Lessor warrants that the Equipment shall substantially conform to its specification (as made available by the Lessor), be of satisfactory quality and fit for any purpose held out by the Lessor. The Lessor shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within one (1) month from Delivery, provided that:
    • The Lessee notifies the Lessor of any defect in writing within two (2) Business Days of the defect occurring;
  • The Lessor is permitted to make a full examination of the alleged defect;
    • The defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor's authorised personnel;
    • The defect did not arise out of any information, design or any other assistance supplied or furnished by the Lessee or on its behalf; and
    • The defect is directly attributable to defective material, workmanship or design.
      • The Lessor shall not be liable for Equipment’s failure to comply with the warranty set out in clause 1 in any of the following events:
    • The Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
    • 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 Equipment;
    • The defect arises as a result of Wahlberg following any drawing, design, or Specification supplied by the Customer or failure of the Lessee to give the Lessor adequate or accurate information or instructions.
  • The Lessee alters or repairs such Equipment 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
  • Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Lessor, the Lessee shall be entitled only to such warranty or other benefit as the Lessor has received from the manufacturer.
  • If the Lessor fails to remedy any material defect in the Equipment in accordance with clause 1, the Lessor shall, at the Lessee's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement and, if relevant, return any Deposit (or any part of it).

10. Liability

  • Without prejudice to clause 2, the Lessor's maximum aggregate liability for breach of the Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the total sum of the Rental Payments under the Contract.
  • Nothing in the Contract shall exclude or in any way limit:
    • Either party's liability for death or personal injury caused by its own negligence;
    • either party's liability for fraud or fraudulent misrepresentation; or
  • Any other liability which cannot be excluded by law.
    • The Contract sets forth the full extent of the Lessor's obligations and liabilities in respect of the Equipment and its hiring to the Lessee. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Lessor except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
    • Without prejudice to clause 2, the Lessor shall not be liable under the Contract for any:
      • Loss of profit;
      • Loss of revenue
      • Loss of business; or
      • Indirect or consequential loss or damage,
  • In each case, however caused, even if foreseeable.

11. Termination

  • The Lessor may, without prejudice to any other right or remedy which may be available to it, terminate the Contract immediately by written notice to the Lessee if:
    • The Lessee defaults in any of its payment obligations;
    • The Lessee commits a material breach of the Contract which breach is irremediable, or which breach (if remediable) is not remedied within ten (10) Business Days after the service of written notice from the Lessor requiring it to do so;
  • The Lessee 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
  • The Lessee 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; or
  • 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 Lessee; or
  • 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 Lessee; or
  • A person becomes entitled to appoint a receiver over the assets of the Lessee or a receiver is appointed over the assets of the Lessee; or
  • A creditor or encumbrancer of the Lessee 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 the Lessee's assets and such attachment or process is not discharged within fourteen (14) days; or
  • Any event occurs, or proceeding is taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(iii) to clause 11.1(ix) (inclusive); or
    • The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
    • Upon termination of the Contract, however caused:
  • The Lessor's consent to the Lessee's possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, without notice and at the Lessee's expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
  • Without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor on demand:
    • All Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4;
    • Any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
  • Upon termination of the Contract pursuant to clause 1, any other repudiation of the Contract by the Lessee which is accepted by the Lessor or pursuant to clause 11.2, without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.
  • The sums payable pursuant to clause 4 shall be agreed compensation for the Lessor's loss and shall be payable in addition to the sums payable pursuant to clause 11.3(ii).
  • Termination of the Contract shall be without prejudice to the rights and obligations of the parties accrued up to the date of termination.

12. Force Majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.. 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.

13. Confidential information

  • Neither party shall, during and after termination of the Contract, without the prior written consent of the other party, use or disclose to any other person any information of the other party which is identified as confidential or which is confidential by its nature.
  • Each party shall on demand and on termination of the Contract surrender to the other party all materials relating to such confidential information in its or its personnel's, agents' or representatives' possession.

14. Assignment and Subcontracting

  • The Lessor 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 Lessee 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 the Lessor.

15. Entire Agreement and Variation

  • The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
  • Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Contract (whether made innocently or negligently) shall be for breach of contract.
  • Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
  • No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16. Contracts

  • A person who is not a party to the Contract shall not have any rights under or in connection with it.
  • The rights of the parties to terminate, rescind, or agree any variation, waiver, or settlement under the Contract is not subject to the consent of any person that is not a party to the Contract.

17. Notices

  • Any notice or other communication required to be given under the Contract, shall be in writing and shall be delivered personally, or sent by pre-paid post or recorded delivery or by commercial courier, to each party required to receive the notice or communication as set out in the Contract or as otherwise specified by the relevant party by notice in writing to each other party.
  • Any notice or other communication shall be deemed to have been duly received:
    • If delivered personally, when left at the address and for the contact referred to in this clause;
    • If sent by commercial courier, on the date and at the time of signature of the courier's delivery receipt; or
    • If sent by pre-paid post or recorded delivery, 9.00 am on the second Business Day after posting.
      • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18. No Waiver

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.

19. 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.

20. 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 • Axel Gruhns Vej 3 • DK-8270 Hoejbjerg

Tel: +45 86 18 14 20sales@wahlberg.dk

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