General Terms & Conditions
- 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.
- 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.
- 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.
- 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.
- 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.
- “Terms and Conditions” shall mean these General Terms and Conditions of Services.
- “Offer” shall mean an offer for the supply of services issued by Nerve that includes a quotation and/or a price list.
- “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.
- “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.
- “On-Site Services” shall mean the installation, commissioning, preventive maintenance / remedial maintenance / upgrades, audit, and removal for replacement and/or recycling.
- “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.
- “Spare Parts” shall mean the materials, components or equipment supplied by Nerve.
- “Customer” shall mean the subscriber to the Services, the recipient of an Offer, or the party issuing a Purchase Order.
- “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
- Unless agreed otherwise by the parties in writing, the Services shall be invoiced at the agreed price, and 50% of the price shall be paid as an advance payment upon placing the Purchase Order. The balance of the price shall be invoiced once the Services are supplied.
- 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.
- 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.
- 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.
- 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.
- Prices shall be exclusive of all taxes and duties, which shall be payable by the Customer to Nerve on top of the price.
- 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.
- 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
- 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.
- 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.
- Delivery takes place in accordance with Ex-Works Incoterms 2010 at Nerve’s facilities or as otherwise agreed in writing between the parties.
- 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.
- The Customer shall perform a visual inspection at the receipt of the Products and notify Nerve any reservations within 24 hours.
- 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.
- 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.
ACCESS TO CUSTOMER PREMISES
- 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.
- Accordingly, the Customer undertakes to give appropriate instructions to the security personnel and, if needed, to get any required authorizations.
- The Customer undertakes to provide Nerve with the internal regulations applicable to the premises where Nerve or its subcontractor shall intervene.
- 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.
- Tools, consumables, equipment:
- Nerve shall provide any tools, equipment or consumables that are necessary to provide the maintenance services.
- 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.
- Preventive Maintenance:
- Preventive maintenance shall be carried out under the conditions set out in the Purchase Order.
- The Purchase Order shall specify the Spare Parts involved, the detail of the operations, the frequency, and the applicable price.
- Remedial Maintenance:
- 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.
- 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.
- 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.
- 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.
- Risks shall pass in accordance with the Ex-Works Incoterm (Incoterms 2010).
- Spare parts, or damaged components, which are sent to Nerve for repairing, shall remain the Customer’s property.
- Training shall be conducted on the dates provided for in the Purchase Order, subject to the application of article 4.2.
- 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.
- If the notice of cancellation is received:
- between 15 days and 5 days before the scheduled date of the training session, 50% of the price shall remain owed;
- 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;
- 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.
- Training shall be conducted on the dates provided for in the Purchase Order, subject to the application of article 4.2.
SPARE PARTS DELIVERY
- All delivered Spare Parts shall be packed and packaged for shipping according to Nerve standards, unless provided otherwise between Nerve and the Customer.
- Unless provided otherwise between Nerve and the Customer, terms of delivery shall be Ex-Works (Incoterms 2010, ICC).
- 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.
- 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.
- 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
- Nerve retains full ownership of the Products until full payment of the selling price has been received.
- 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.
- 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.
- 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.
- Nerve retains full title to Spare Parts until full payment of the price has been received.
- 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 above.
- 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.
- 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.
- 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.
- Warranty claims must be made to Nerve immediately after discovering the defect and within the warranty period or are forever waived.
- 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.
- 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.
- 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
- Unless otherwise agreed in writing, all prices are exclusive of any installation or service Customer may require.
- 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
- Tests on the Products specified in the Offer will be performed by Nerve at its facilities.
- 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
- In no event Nerve shall have any liability for damages in an amount exceeding the purchase price of the related defective Products.
- 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.
- 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.
- 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.
- Nerve undertakes to intervene on such equipment at its own expense to remedy such error, excluding any other remedy, indemnity or damages.
- The presumption of liability shall not apply in the following situations:
- Inadequate operation by the Customer;
- maintenance or repairs carried out by a person other than Nerve, under conditions that are not in conformity with Nerve’s user manual;
- and more generally any event that is beyond Nerve’s control.
- 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
- 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.
- 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.
- The Customer undertakes not to infringe the intellectual property rights (as defined in article above), and not to test, dismantle, reverse engineer or analyse the Spare Parts in any manner, except with Nerve’s prior written consent.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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
- 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.
- 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.
- 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.
- Modification: Nerve reserves the right, at any time, to make any technical improvements of the Products subject to an increase of price.
- 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.
- Assignment: The Purchase Order shall not be assigned nor transferred by the Customer without the prior written consent of Nerve.
- 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.
- Nullity: if any provisions of these Terms and Conditions are declared null and void, the validity of the other provisions shall not be affected.
- 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.