Terms

Terms & Conditions

General Terms & Conditions

 

As of 01 august 2021

 

1.    Scope

 

1.1.           These General Terms and Conditions of
Sale shall apply to all Offers submitted by Nerve to a Customer and to Purchase
Orders received from a Customer and accepted by Nerve.

 

1.2.           These Terms and Conditions shall
prevail over any other terms and conditions contained in any Purchase Order or
other document of or communication from the Customer.

 

1.3.           These Terms and Conditions come in
addition to any specific terms and conditions provided for in the Purchase
Order. In the event of conflicting terms, the terms of the Purchase Order shall
prevail.

 

 

1.4.           An Offer shall be valid for 30 days
from the day it is issued unless a different validity period is stated in the
Offer. All Purchase Orders are subject to acceptance by Nerve in writing.

 

1.5.           Descriptions and illustrations
contained in Nerve Smart Systems catalogues, brochures, price lists and other
sales literature are for information purposes only and they have no contractual
value. The Customer gives up availing itself of those descriptions and
illustrations when subscribing to the Services.

 

 

2.    Definitions

 

2.1.            “Terms and Conditions” shall mean these General Terms
and Conditions of Services.

 

2.2.            “Offer” shall
mean an offer for the supply of services issued by Nerve that includes a
quotation and/or a price list.

 

2.3.            “Purchase
Order” shall mean the written order for services issued by the Customer by any
written means whatsoever (post, e-mail, or any other electronic means of
transmission), and accepted by Nerve in accordance with these Terms and
Conditions.

 

2.4.            “Services” shall mean any services offered by Nerve,
including the remote supervision of the equipment operation parameters, whether
on a punctual basis or in real time (“conditional analysis services”), of the
diagnoses, of the recommendations, On-Site Services (as defined below), Stock
Management, and Training.

 

2.5.            “On-Site
Services” shall mean the installation, commissioning, preventive maintenance /
remedial maintenance / upgrades, audit, and removal for replacement and/or
recycling.

 

 

2.6.            “Stock Management” shall mean the
services consisting in the definition and enforcement of a stock management
policy, including the supply of spare parts or components.

 

2.7.            “Spare Parts”
shall mean the materials, components or equipment supplied by Nerve.

 

2.8.            “Customer”
shall mean the subscriber to the Services, the recipient of an Offer, or the
party issuing a Purchase Order.

 

2.9.            “Nerve” shall
mean Nerve Smart Systems ApS or any subsidiary of which Nerve Smart Systems
holds directly or indirectly more than 50% of the share capital.

 

 

3.    Price – payment

 

3.1.           Unless agreed otherwise by the
parties in writing, the Products & Services shall be invoiced at the agreed price.

 

3.2.           Prices shall be revised every year on
the anniversary date of the effective date of the Purchase Order in accordance
with the formula agreed by written between the parties.

 

3.3.           Unless agreed otherwise by the
parties in writing, all prices given by Nerve are expressed without VAT, and on
an Ex-Works basis (Incoterms 2010). Where the provision of a Service requires
the transportation of a Product between the Customer site (as place of
destination or shipment) and the Nerve site (as place of shipment or
destination), the Customer shall be expected to pay for any and all costs
incurred by Nerve in respect of carriage, freight, customs, packaging and
insurance.

 

Travel, food and accommodation expenses incurred by
Nerve’s employee (or its subcontractor’s employee), shall also be excluded from
the price and be payable by the Customer.

 

3.4.           Payment for the Services shall be
made by the Customer by bank transfer within 30 days from the date of the
invoice or as otherwise agreed between Nerve and the Customer. No discount
shall be granted for an early payment.

 

3.5.           Nerve reserves the right to demand
guarantees of payment (in the form of a deposit or otherwise) when it considers
there is a risk of non-recovery of sums invoiced in respect of the Services.

 

3.6.           Prices shall be exclusive of all
taxes and duties, which shall be payable by the Customer to Nerve on top of the
price.

 

3.7.           Any amounts not received by Nerve on
its due date shall be subject to interest at the rate of 15% per annum,
increased by a lump sum for recovery costs of 40 euros per delayed invoice. The
interests shall accrue in respect of any sum that is overdue, and the late
interests shall be capitalized.

 

 

 

 

3.8.           Failing payment of the price by the
Customer when due, Nerve reserves the right to suspend or terminate the
Purchase Order within 5 days following notification to the Customer by
registered letter or by e-mail with acknowledgement of receipt. This is without
prejudice to any damages which may be claimed by Nerve.

 

4.    Delivery & Service deadlines

 

4.1.           All Products will be suitably packed
for shipment in accordance with Nerve’s standard, unless otherwise requested by
the Customer and agreed to in writing by Nerve.

 

4.2.           Nerve shall do its best efforts to
comply with the delivery date of Products and/or Services specified in the
Purchase Order acknowledged and/or in the Offer. Partial delivery shall be
permitted. Delays shall, in no case whatever, justify the cancellation of the
Purchase Order. Nerve shall not be responsible for delays in delivery or
performance due to causes beyond its reasonable control, including Force
Majeure as defined in Section 13. If performance by Nerve is delayed by reason
thereof, Nerve shall notify Customer, and the time for performance shall be
extended for the period of such contingency. If, as a result of any such
contingency, Nerve is unable to perform any accepted Purchase Order in whole or
in part, then to the extent that it is unable to perform, such Purchase Order
shall be deemed terminated without liability to either party but shall remain
in effect as to the unaffected portion thereof, if any.

 

4.3.           Delivery takes place in accordance
with Ex-Works Incoterms 2010 at Nerve’s facilities or as otherwise agreed in
writing between the parties.

 

4.4.           It is agreed between Nerve and
Customer that the Products are shipped at the Customer’s risk even if the
shipping is done at Nerve’s expense. Customer shall then take all necessary
precautions including insurance to cover these risks.

 

4.5.           The Customer shall perform a visual
inspection at the receipt of the Products and notify Nerve any reservations
within 24 hours.

 

4.6.           Should Customer postpone delivery of
any Products or Services, Customer will be required to pay to Nerve i) the
invoice at the due date and, ii) 1% of the Purchase Order price per week for
the Products storage at Nerve premises. Should Customer postpone delivery of
any Product above 12 weeks from the scheduled delivery date, Nerve shall have
the right to deliver the Product and to invoice accordingly.

 

4.7.           Nerve shall make its best efforts to
comply with the dates and deadlines for performance / service-delivery, which
are provided for in the Purchase Order. In the event of late performance /
service-delivery, the Customer undertakes not to terminate the Purchase Order,
deduct a sum from the price of the Purchase Order, nor to modify / cancel /
delay other pending Purchase Orders.

 

 

 

 

 

 

 

5.    Services

 

5.1. ACCESS TO CUSTOMER
PREMISES

 

5.1.1.                 In the event of an intervention on a
Customer site, the Customer undertakes to let Nerve, or its sub-contractors,
access the site at the hours agreed between the Parties.

 

5.1.2.                 Accordingly, the Customer undertakes
to give appropriate instructions to the security personnel and, if needed, to
get any required authorizations.

 

5.1.3.                 The Customer undertakes to provide
Nerve with the internal regulations applicable to the premises where Nerve or
its subcontractor shall intervene.

 

5.1.4.                 The Customer shall plan and provide
all means required to comply with safety rules when intervening. In this
regard, the Customer notably guarantees that a person authorized to carry out
electrical work attends when Nerve intervenes. Said person shall also be able
to take any required steps at soon as possible, to save Nerve’s or its subcontractor’s
employee in the event of an accident.

 

5.2. MAINTENANCE

 

5.2.1.       Tools, consumables,
equipment:

5.2.1.1.            Nerve shall provide any tools,
equipment or consumables that are necessary to provide the maintenance
services.

 

5.2.1.2.            Nevertheless, the Customer shall
allow Nerve to use any lifting and handling equipment, and individual tools,
any personal protective equipment, any usual consumer goods, and any fluids,
which exist on site.

 

5.2.2.       Preventive
Maintenance:

5.2.2.1.            Preventive maintenance shall be
carried out under the conditions set out in the Purchase Order.

 

5.2.2.2.            The Purchase Order shall specify the
Spare Parts involved, the detail of the operations, the frequency, and the
applicable price.

 

5.3. Remedial
Maintenance:

5.3.1.                 Nerve undertakes to get in touch with
the Customer as soon as possible after receiving notice in writing / on the
phone, of an error affecting the Product, to try and help the Customer
remedying the issue remotely.

 

5.3.2.                 In the event the recommended actions
do not make it possible to solve the error, an initial error report shall be
drawn up by Nerve and forwarded to the Customer within the shortest delays
after the notice.

 

 

5.3.3.                 Once the operations are completed,
Nerve shall draw up an intervention report and disclose it to the Customer.
Recommendations shall be included in this report, if relevant.

 

 

 

 

5.4. STOCK MANAGEMENT:

5.4.1.                 Spare parts shall be purchased by the
Customer in accordance with the management policy set out by Nerve, on request
by the Customer or in sufficient quantities and quality to make it possible for
Nerve to provide the maintenance services the Customer subscribed to.

 

5.4.2.                 Risks shall pass in accordance with
the Ex-Works Incoterm (Incoterms 2010).

 

5.4.3.                 Spare parts, or damaged components,
which are sent to Nerve for repairing, shall remain the Customer’s property.

 

 

5.5. TRAINING:

5.5.1.                 Training shall be conducted on the
dates provided for in the Purchase Order, subject to the application of article
4.2.

 

5.5.2.                 In the event of cancellation of the
Training at the Customer’s initiative, a written notice of cancellation shall
be received by Nerve at least 15 days before the scheduled date of the training
session. Nerve shall repay the whole of the price.

 

5.5.3.       If the notice of
cancellation is received:

5.5.3.1.            between 15 days and 5 days before the
scheduled date of the training session, 50% of the price shall remain owed;

5.5.3.2.            less than 5 days before the scheduled
date of the training session, or if the trainees do not show up, 100% of the
price shall remain owed;

5.5.3.3.            The part of the price, or the price
as a whole, which is retained by Nerve under the aforesaid conditions, is a full
and final lump-sum indemnity.

 

5.6.           SPARE PARTS DELIVERY

 

5.6.1.                 All delivered Spare Parts shall be
packed and packaged for shipping according to Nerve standards, unless provided
otherwise between Nerve and the Customer.

 

5.6.2.                 Unless provided otherwise between
Nerve and the Customer, terms of delivery shall be Ex-Works (Incoterms 2010,
ICC).

 

5.6.3.                 It is expressly agreed that shipment
of the Spare Parts is at the Customer’s risk even if the shipping is done at
Nerve’s expense. The Customer shall take all necessary precautions and any
required insurance to cover these risks, at the Customer’s expense.

 

5.6.4.                 The Customer shall perform a visual
inspection of the Spare Parts on receiving them, and shall notify any
reservations to Nerve within 24 hours. A failure to notify reservations within
that time period shall be deemed an acceptance of the Spare Parts.

 

5.6.5.                 Should the delivery of the Spare
Parts be postponed by the Customer to a later date than that initially agreed,
then the Customer will be required to pay the following to Nerve: (i) the invoice
for the balance of the purchase price on its due date, and (ii) 1% of the
amount of the Purchase Order per week during which the Spare Parts are stored
on Nerve’s premises. Should the Customer postpone delivery of any Spare Parts
above 12 weeks from the scheduled delivery date, Nerve shall have the right to
deliver the Spare Parts to the Customer and to invoice accordingly.

6.    Retention of title

 

6.1.           Nerve retains full ownership of the
Products until full payment of the selling price has been received.

 

6.2.           Notwithstanding Nerve’s retention of
title, the risks related to the Products (including the risk of loss or
destruction) shall pass to the Customer in accordance with Section 4.3 above.

 

6.3.           Until full payment of the price, the
Customer shall keep the Products separate from any other products and properly
stored, protected, insured and identified as Nerve’s property.

 

6.4.           Nerve reserves the right to reclaim
the Products if the selling price is unpaid at the due date and Customer
undertakes to return the Product on Nerve’s first demand and bear all related
expenses.

 

6.5.           Nerve retains full title to Spare
Parts until full payment of the price has been received.

 

6.6.           Notwithstanding Nerve’s retention of
title, the risks related to the Products (including the risk of loss or
destruction), shall pass to the Customer in accordance with article 5.6.3
above.

 

6.7.           Until full payment of the price, the
Customer shall keep the Spare Parts separate from all of its other products,
and shall ensure the Spare Parts are properly stored, protected, insured, and
identified as Nerve’s property.

 

6.8.           Nerve reserves the risk to reclaim
Spare Parts if the purchase price has not been paid on due date. In such a
case, the Customer undertakes to return the Spare Parts to Nerve on Nerve’s
first request, and to bear any related transportation costs.

 

 

7.    Warranty

 

7.1.           Nerve warrants that the Products and
spare parts shall, for a period of one year from Nerve’s delivery of such
Products, be free from defects in materials and workmanship and shall conform
to the contractual specifications or to specification sheet of the Product /
spare part. This warranty does not cover defects or failure caused by improper
handling, storage, maintenance or repair or by any modification, misconnection,
abuse, abnormal use of such Products (inter alia overloading or overcharging)
or use not complying with Nerve’s user manual provisions if any.

 

7.2.           Warranty claims must be made to Nerve
immediately after discovering the defect and within the warranty period or are
forever waived.

 

7.3.           The foregoing warranty is exclusive of
any other warranties, express, implied or statutory. In particular, this
warranty shall not apply to failure arising from defect in design, when the
design has been completed by the Customer or a third party. Unless otherwise
agreed, the warranty shall not apply to the compliance of Products to
Customer’s needs. Should the Products warranty be breached, Customer’s
exclusive remedy against Nerve, and Nerve’s sole obligation, shall be limited
to, at Nerve’s option, repairing or replacing the defective Products or
refunding the purchase price of such defective Products.

 

 

7.4.           The Product shall be considered as
defective if the failure may be duplicated by Nerve, it being understood that
non conformity shall be determined by reference to the contractual
specifications applicable to the allegedly defective Products.

 

7.5.           If Nerve fails to comply with the
warranty, the Customer’s only remedy shall be limited to the repairing,
replacement, or the refund of the purchase price of, the defective Spare Parts,
excluding any other liability for Nerve.

 

8.    Installation & assembly

 

8.1.           Unless otherwise agreed in writing,
all prices are exclusive of any installation or service Customer may require.

 

8.2.           If Nerve or Nerve’s subcontractors is
required to install the Products supplied hereunder at the Customer’s premises,
Nerve shall be under no liability whatsoever for damage incurred by the
Customer, caused by Nerve, its agents or sub-contractors in installing the
Products or for any consequential damages or purely financial loss howsoever
caused.

 

 

 

9.    Inspection & Tests

 

9.1.           Tests on the Products specified in the
Offer will be performed by Nerve at its facilities.

 

9.2.           If Customer requires tests other than
those specified in the Offer, or if Customer requires that the specified tests
be carried out in the presence of its representatives, Customer shall pay for
the cost of those tests and any other associated costs.

 

10.                      
Liability
& acceptance

10.1.                    
In no event Nerve shall have any liability for damages
in an amount exceeding the purchase price of the related defective Products.

 

10.2.                    
Nerve shall not have any liability for incidental,
indirect or consequential damages arising out or relating to the Purchase Order
or the Products, including but not limited to loss of profit or revenue, loss
of business opportunity or anticipated saving.

 

 

10.3.                    
Unless otherwise agreed in writing with the Customer,
Nerve shall not be liable for damages arising from the integration or the use
of Products in a system or equipment (the “System”), on the design of which
Nerve has no control. In such case, the Customer is solely liable for the
System quality and reliability, as well as for necessary security device and
shall indemnify Nerve against any demand, claim, action, decision, loss or
damage arising from the use of the System which incorporates the Products.

 

 

 

10.4.                    
Nerve’s liability in the event of a poor performance
or failure to perform its obligations, shall be limited to the direct damage to
property, without exceeding the price of the Purchase Order.

 

 

10.5.                    
Nerve undertakes to intervene on such equipment at its
own expense to remedy such error, excluding any other remedy, indemnity or
damages.

 

10.6.                    
The presumption of liability shall not apply in the
following situations:

10.6.1.              Inadequate operation by the Customer;

10.6.2.              maintenance or repairs carried out by
a person other than Nerve, under conditions that are not in conformity with
Nerve’s user manual;

10.6.3.              and more generally any event that is
beyond Nerve’s control.

10.6.4.              Nerve’s liability may under no
circumstances be incurred for indirect damage (whether consequential or not)
that may arise at any time and for any reason, including, but not limited for,
for lost profit, loss of income or data, loss of business prospects, or loss of
an opportunity.

 

11.                      
Intellectual
property

 

11.1.                    
Any and all intellectual property rights in, or
related to, the Products, Services and Spare Parts (including in or to any
designs, drawings, technical specifications, test results, technical
descriptions, catalogues, brochures, manuals and any other data, disclosed with
or in relation to the Offer or resulting from Nerve’s performance of the
Purchase Order) are and remain Nerve’s exclusive property. Nerve grants no
license over the intellectual property rights related to the Spare Parts sold
under these Terms and Conditions.

 

 

11.2.                    
However, a license for use of the literary and
artistic property in the studies and audit reports drawn up when performing the
Services shall be granted by Nerve to the Customer for the sole purposes of
their implementation and for the maximum duration of the applicable protection,
unless the Parties agree otherwise. The Customer undertakes not to reproduce,
broadcast, adapt or modify them in any manner whatsoever.

 

11.3.                    
The Customer undertakes not to infringe the
intellectual property rights (as defined in article 11.1), and not to test,
dismantle, reverse engineer or analyse the Spare Parts in any manner, except
with Nerve’s prior written consent.

 

11.4.                    
In the event that Products are
developed and/or manufactured in accordance with plans, drawings and
specifications provided by the Customer, the Customer shall hold harmless Nerve
against any and all claims and damages resulting from alleged or actual
infringement of any industrial or intellectual property rights of a third
party.

 

11.5.                    
Customer shall promptly notify
Nerve of any intellectual property claim related to the Products and shall give
Nerve any assistance and information requested by Nerve for the defense of such
intellectual property claim.

 

11.6.                    
Unless otherwise agreed in
writing, specific tooling designed and produced to manufacture Products
designed by Nerve according to Customer’s specifications shall remain Nerve’s
exclusive property.

 

 

 

12.                      
Confidentiality

 

12.1.                   
Any information, data, know-how
disclosed by Nerve shall at all times be treated by the Customer as strictly
confidential and shall not without Nerve’s prior written consent (i) be used by
the Customer for any other purpose than the use of the Product, and/or (ii) be
communicated to third parties.

 

13.                      
Force
Majeure

 

13.1.                    
Force Majeure means any events
beyond Parties’ control including without limitation, strikes or other labor
disturbances, inability to obtain fuel, material or parts, delays in
transportation, repairs to equipment, supplier’s failings, fire or accident.

 

13.2.                   
Should either party be prevented
from performing its obligations by reason of Force Majeure, then such party
shall not be liable for such nonperformance and its obligations shall be
suspended for the duration of the Force Majeure event.

 

 

14.                      
Applicable
law and disputes

 

14.1.                    
These Terms and Conditions shall be governed by the
laws of Denmark without making reference to its conflict of law provisions. Any
action shall be brought by the parties within the exclusive jurisdiction of the
Maritime and Commercial Court of Denmark. Nothing in this paragraph shall limit
the right of Denmark to bring proceedings in any other courts of competent
jurisdiction to the extent permitted by applicable law.

 

 

 

15.                      
Compliance
and export control

 

 

15.1.                    
Customer shall comply with all applicable laws
including but not limited to laws relating to anti-bribery and anti-corruption.
The Customer shall not offer, promise or give any undue pecuniary, bribes or
other advantage for any reason, whether in dealings with governments or the
private sector.

 

 

 

 

15.2.                    
Customer undertakes that the Products shall not be
sold, directly or indirectly, to any country/person if it is in violation of
export control or economic sanctions laws or regulations. The Customer shall
also ensure that its sub-distributors and agents will comply with such laws.
Nerve shall be excused from performance of any contractual obligation to the
extent that such performance is prohibited under any export control or
sanctions laws and regulations, without any liability whatsoever.

 

15.3.                    
Customer shall procure that any third parties to whom
the products from Nerve will be supplied are under the same obligations as set
out in this Section 15 such that all third parties down the supply chain, as
far as the end-user, are under the same strict compliance obligations.

 

16.                      
Miscellaneous

 

16.1                      
Modification: Nerve reserves the right, at any time,
to make any technical improvements of the Products subject to an increase of
price.

 

16.2                      
Waiver: no failure or delay by Nerve or by the
Customer in exercising any of its rights under these Terms and Conditions shall
operate as a waiver thereof nor shall any single defective or partial exercise
thereof preclude any other or further exercise of that or any other right.

 

 

16.3                      
Assignment: The Purchase Order shall not be assigned
nor transferred by the Customer without the prior written consent of Nerve.

 

16.4                      
Amendment: Any modification to the Purchase Order
shall be made only in writing and duly signed by Nerve and the Customer. Nerve
can revise these Terms and Conditions without notice to the Customer.

 

16.5                      
Nullity: if any provisions of these Terms and
Conditions are declared null and void, the validity of the other provisions
shall not be affected.

 

16.6                      
Severability: if any one of the provisions of these
Terms and Conditions were found invalid or unenforceable, the other provisions
of these Terms and Conditions shall remain unaffected.