General sales and delivery terms for the sale of Products, Service Agreements and/or Consultancy Services to customers of Wingmen Solutions ApS
applicable from 14 February 2022
The following sales- and delivery terms (“Terms”) apply to all sales from Wingmen Solutions ApS, Danish CBR no. 36550228 (“Seller”) of products, including hardware, software, consultancy services, service agreements and/or Wingmen Advantage agreements (“Products”) to customers (“Buyer”).
2. Contractual basis
2.1 The contractual basis for Seller’s sale and delivery of Products to Buyer (“the Agreement”) constitutes these Terms, Seller’s offer, order confirmation and any written agreement governing the assignment between Seller and Buyer.
2.2 Buyer’s purchase conditions printed on orders or otherwise communicated to Seller do not form part of the Agreement unless Seller has explicitly consented to such.
2.3 Any deviation from the Terms shall be made explicitly in writing by Seller in the offer, order confirmation or the Agreement.
2.4 In the absence of an agreement governing the assignment between Seller and Buyer, the delivery of Products shall be governed solely by these Terms.
2.5 Amendments and addendums to the Agreement shall only apply if the parties agree to them in writing.
3. Orders, offers, acceptance and order confirmations
3.1 Offers must be accepted in writing by Buyer within 7 working days of the date of Seller’s offer, unless otherwise stated in writing in the offer from Seller. If Buyer fails to accept the offer in writing within the above said period, Seller is entitled to sell the Product offered to someone else.
3.2 Order confirmations. Seller strives to submit confirmation or refusal of an order placed by Buyer for products to Buyer in writing within 7 working days of receipt of the order. An order is only binding for Seller if Seller has confirmed the order in writing.
3.3 Order amendments – Buyer. Buyer cannot amend an order placed, including amendments to specification, quantity and delivery time, without Seller’s written consent.
3.4 If Seller consents to any amendments made by Buyer, any costs incurred on Seller in connection with such are payable by Buyer.
3.5 Order amendments – Seller. If the order confirmation submitted by Seller should deviate from Buyer’s orders (e.g. extras, reductions or reservations), Buyer is obliged within 7 days from receipt of the order confirmation to notify Seller in writing if Buyer cannot accept the deviations from Buyer’s order, upon which the parties shall mutually decide if the order shall be maintained or changed. If the order is cancelled, Buyer must pay for reasonable costs incurred on Seller. If Buyer does not complain about an order confirmation, the order confirmation submitted by Seller and these Terms shall apply.
3.6 Right of return. Seller does not grant any right of return to Buyer unless such is made in writing and prior expressly agreed between the parties. In addition, any returned consignments must be in unopened and intact, original packaging. Upon crediting, Seller reserves the right to deduct a return fee of 15% of the invoice value.
4. Hardware, Software etc.
4.1 The software comprises operating systems, middleware or modification programs, applications or other software published or licensed by Seller or third parties (“Software”).
4.2 Buyer receives a non-exclusive right of use to Software contained in the Product under the terms specified in the included license agreement. The license agreement and terms for use of the Software in force from time to time are available on the website of the software supplier here. In the event of a discrepancy between these Terms and the license terms, the license terms shall prevail. If the respective suppliers provide a warranty for the Software, this warranty shall be transferred to Buyer to the same extent as Seller may raise claims against the suppliers. Seller cannot otherwise be held liable for any errors or defects in the Software supplied.
4.3 Software maintenance. Continuous maintenance of the Software supplied is only provided if agreed separately.
4.4 Software documentation. Documentation is provided only to the extent that it is included without separate payment from the respective supplier.
4.5 Installation of hardware and/or Software. If the parties have concluded an agreement on installation and/or start-up, Seller will install the supplied during Seller’s normal working hours, unless otherwise explicitly agreed in writing between the parties. Buyer is obliged to ensure that a full and secure backup has been made before initiating installation. Buyer is also responsible for granting Seller free, secure and unrestricted access to the Buyer’s system to allow unhindered installation on the part of Seller. Buyer simultaneously warrants that all health and safety requirements and similar mandatory requirements are met, and Buyer will make qualified staff available to Seller free of charge as required in connection with the execution of the work.
5. Consultancy services – only applicable when a resource is purchased by means of insourcing a consultant
5.1 Consultancy Services. Consultancy Services consist of consultants with specified qualifications made available to Buyer as determined by agreement (“Consultancy Agreement”).
5.2 If a Consultancy Agreement is concluded with Buyer, Seller shall ensure that the consultants made available to Buyer meet the qualification requirements set out in the Consultancy Agreement, and further that the consultants meet other relevant requirements in general.
5.3 Seller shall make the consultants specified in the Consultancy Agreement available to the Buyer within normal working hours Monday-Thursday from 08:30 until 16:30 and on Fridays from 08:30 until 16:00 (“Working hours”) during the period set out in the Consultancy Agreement.
5.4 Buyer shall instruct the consultants in question and perform project management in respect of the consultants and perform quality assurance of the specified assignments to the extent Buyer finds this relevant. Following such, Seller is not responsible for the work carried out by the consultants for Buyer.
5.5 In the relationship between Seller and Buyer, all rights to the products arising from the work carried out by the consultants will belong to Buyer to the widest possible extent. However, Seller is entitled to exploit the general experience/knowledge gained in connection with the consultants’ activities.
5.6 Buyer warrants that neither Seller nor the consultants will not incur any liability towards any third party or public authorities as a result of Buyer’s instructions. In addition, Buyer warrants that the consultants will not be instructed contrary to public policy, and Buyer warrants to exempt Seller of any claim raised against Seller and/or one or more consultants on the basis of the consultants’ work at Buyer.
5.7 As the consultants are employed by Seller, Seller may at any time request that instructions are given to Seller and not to the individual consultants. Regardless of whether instructions are given directly or via Seller, the aforementioned warranties etc. shall still apply on the part of Buyer.
A service is an ongoing activity governed by an agreement (“Service Agreement”) which Buyer acquires or agrees to acquire from Seller.
If expressly specified in the Service Agreement, Seller shall maintain the equipment belonging to Buyer at the addresses specified in the Service Agreement. If Buyer alters and/or makes add-ons to the equipment comprised by the Service Agreement, or changes the location of the equipment, such alterations shall be notified to Seller immediately.
Seller does not provide uptime warranty.
7. Wingmen Advantage services
7.1 Wingmen Advantage services. Wingmen Advantage services are various kinds of services which Buyer acquires from Seller. Wingmen Advantage services are more precisely defined and regulated in a Wingmen Advantage agreement (“Wingmen Advantage agreement”).
8. Buyer’s obligations
8.1 Buyer must provide Seller with the correct and adequate information necessary for Seller’s fulfilment of obligations, including information about Buyer’s specific requirements, industry conditions and the intended use of Products, Service agreements and Wingmen Advantage agreements.
8.2 Seller warrants that deliveries comply with general legislation, but Buyer is responsible for complying with current legislation and authority regulations, including to ensure that the intended use of Seller’s delivery is legal and fulfils Buyer’s requirements for the delivery, and Buyer must inform Seller of this to the extent necessary and relevant.
8.3 Buyer must obtain all permits and approvals from third parties (including authorities) necessary for Seller’s fulfilment of obligations and necessary for Buyer’s legal use of the deliveries.
9.1 Seller is entitled to use sub-suppliers and to have its obligations performed wholly or partly by sub-suppliers.
10. Price and payment
10.1 All prices are excluding VAT and other taxes, unless explicitly stated otherwise. Prices do not include freight or handling fees unless explicitly stated in the Agreement.
10.2 Price changes. All prices stated, including in offers and order confirmations, are subject to price changes due to changes in exchange rates. If a specified price is based on deliveries in a currency other than Danish kroner, Seller is entitled to adjust the price payable by Buyer if the exchange rate at the time of invoicing changes more than 2% in relation to the current price at the time of the offer or order.
10.3 Payment is due at the time of delivery. Payment must be made net cash no later than 30 days after delivery, unless otherwise agreed in writing. Payment must be made in full, hence no amount can be withheld or set off against the payment.
10.4 Invoicing of maintenance works is made according to time spent and material consumption on the basis of Seller’s hourly rates, unless a specific agreement about Seller’s remuneration is concluded regarding maintenance of add-ons and/or alterations.
10.5 Consultancy Services. Invoicing is made in monthly arrears. Travel and accommodation in connection with work performed on islands not connected by bridge to the rest of Denmark shall be invoiced separately as per account rendered. If the delivery of Consultancy Services is postponed or entirely cancelled by Buyer less than 24 hours before the commencement of the service due to circumstances for which Buyer is responsible, Seller reserves the right to invoice 50% of the cancelled service.
10.6 Every year on 1 January, all prices for services and consultancy services will be increased by 3%. The regulation applies to services and consultancy services provided after 1 January the year in question.
11. Delayed payment
11.1 If Buyer fails to pay in due time for reasons beyond Seller’s responsibility, Seller is entitled to claim 1.5% interest per month or part thereof from the due date and until payment is effected. Buyer is also obliged to pay any reminder fees which are invoiced at DKK 100 for each reminder (up to a total of DKK 300) and reimburse all costs in connection with debt collection and other costs pertaining to the collection of the purchase price. Without submitting any reminder, Seller is simultaneously entitled to claim a fixed compensation amount of DKK 310 excluding VAT for coverage of collection costs.
11.2 If payment (including fees and interest) is not paid in due time, Seller may notify Buyer in writing to arrange for settlement of the balance within 8 days.
11.3 Termination If Buyer has still not paid the due amount within the 8-day time limit set out in Seller’s notification, Seller is entitled upon notifying Buyer of the exceeded time limit to:
(I)cancel the sale of Products which concerns the delayed payment and claim a return of the Products from Buyer if delivery has been made,
(II) cancel the sale of Products which have not yet been delivered to Buyer or require a down payment for such,
(III) terminate the Agreement,
(IV) and in addition to interest, claim compensation from Buyer for the loss incurred on Seller, and/or
(V) claim other remedies for breach of contract.
12. Retention of title
12.1 Title and right of use. Title or right of use to the Product remains with Seller, or whoever Seller has transferred its rights to, until the entire purchase price including interest, costs, etc., have been paid in full by Buyer, and other obligations according to the Agreement and claims resulting from installations, repairs, modifications or other circumstances regarding the Product, including costs pertaining to any repossessions, have been paid by Seller.
12.2 Repossession Seller is entitled to take back the Product if Buyer does not fulfil its obligations.
12.3 Hence, Buyer is not entitled to pass on (including to sell), create charges, rent out, lend out, deposit or in any other way dispose over the Product, until payment has been effected in full, cf. clause 10.
12.4 Buyer is obliged to insure the Product against accidental loss until title or right of use to the Product passes to Buyer.
13.1 Time of delivery Time of delivery has been stated as approximate and non-binding dates, unless otherwise explicitly stated. In addition, Seller is entitled to postpone the approximate time of delivery if it is necessary to exceed this due to circumstances not caused by Seller.
13.2 Terms of delivery All Products and Services are delivered to the address agreed with Buyer.
13.3 If no delivery clause is agreed, delivery must be made to Buyer’s registered office address.
13.4 Buyer must pay freight and handling fees.
13.5 Delivery of Product. Delivery is considered done once the Product has been handed over to – or placed at the disposal of – Buyer or Buyer’s representative. Once delivery has been made, the risk passes to Buyer. The Software is considered placed at the disposal of Buyer when e.g. information about link to download or similar has been given to Buyer or its representative.
14. Delayed delivery
14.1 Delay If delayed delivery of the Product is caused by an incident which pursuant to clause 19 constitutes exemption from liability or is caused by Buyer’s actions or omissions, the time of delivery is postponed to such extent it is deemed reasonable depending on the circumstances. In addition, Seller is entitled to payment for any additional costs according to Seller’s hourly rates applicable from time to time.
14.2 Notification If Seller expects a delay in the delivery of Products, Buyer will be notified of such. At the same time, Seller will inform the reason for the delay and the new expected time of delivery.
14.3 Claim for remedy. If Seller does not deliver the Product in due time, Buyer may, by written notification to Seller, set a reasonable time lime for delivery (the reasonable time limit will depend on the nature of the Product, but must always be no less than 30 working days).
14.4 Termination If delivery is not made within the (reasonable) time limit set by Buyer, Buyer is entitled to terminate the Agreement in whole or in part if the delay is material to Buyer and the delay also would have been considered material to any buyer in general.
14.5 Custom-made products. In the event of custom-made Products, Buyer cannot, regardless of the above, terminate the deal on the basis of delay, unless such can be made without incurring losses on the part of Seller.
14.6 Compensation If Buyer terminates the Agreement according to clause 14.4 , Buyer may claim compensation from Seller for the direct extra costs incurred on Buyer when acquiring corresponding equipment from somewhere else. However, such compensation cannot exceed 50% of the invoice value (maximum DKK 5,000,000) of the delayed delivery.
14.7 Buyer is not entitled to any compensation for loss on operations, loss of profits, increased resource consumption, consequential damages, penalties, lost or postponed sales, loss of data or costs for data re-establishment, freight costs, secondary damages or indirect losses, regardless of the reason for such loss. This clause 7 shall apply regardless of whether Buyer terminates or maintains the purchase.
14.8 Claim for damages. Any claim for damages must be made in writing to Seller no later than 12 months after the time of the tortious act; failing that the claim will be regarded as lapsed.
15. Operation and maintenance of the Products
15.1 Seller or Seller’s suppliers will not perform ongoing maintenance of the delivered Products, unless the parties have explicitly agreed on this.
15.2 Seller refers to its own and Seller’s supplier’s directions for use, manuals, operating instructions, etc, which shall be complied with at all times. Use of the Product also depends on the specific circumstances, such as the materials and tools on which Buyer uses the Product. Hence, any instruction in the operation and maintenance of the Product, including instructions in directions for use, manuals, operating instructions, etc. is subject to the actual circumstances. Seller will also provide advice on the correct use and maintenance of the Product. If Buyer is in doubt about the correct operation or maintenance of the Product, Buyer should approach Seller.
15.3 Except in cases of intentional tortious acts, Seller shall in no event be liable for any direct or indirect financial or non-financial damages caused by the Product or its use, including, but not limited to, loss due to interruption, computer failure or errors, loss of data and other professional losses, not even if Seller has been made aware of the possibility of such damages. However, Seller shall be liable according to legislation on product liability in so far as it applies in the specific situation, cf. clause 5.
16.1 Seller may transfer the warranty to Buyer from Seller’s manufacturer or supplier, provided that the manufacturer or supplier accepts that complaints will be covered by the warranty and the manufacturer or supplier exempts Seller from any claim arising therefrom. The warranty provisions from Seller’s manufacturer or supplier in force from time to time are available from the website of the manufacturer here.
Seller is not responsible for and provides no warranty for Buyer’s or a third party’s services, software, products, materials, tools and methods, even if included in the deliveries.
16.2 Furthermore, Seller does not warrant that the Products delivered will function without errors or downtimes.
17.1 Defects If any of the Seller’s Products are subject to non-conformity, Seller shall rectify or redeliver such non-conforming Products, provided Buyer complains towards Seller within 1 year from delivery.
17.2 Services. Services are considered non-conforming, if Seller’s services have not been performed in accordance with good business practice in the IT industry.
17.3 Exceptions. Clause 17.1 does not comprise wearing parts, errors or defects caused by: (i) normal use, (ii) storing, installation, use or maintenance contrary to Seller’s or Seller’s manufacturer’s instructions, recommendations, specifications or ordinary practice, (iii) repairs or alterations made by others than by Seller, and (iv) other circumstances which Seller is not responsible for.
17.4 Duty of inspection – Buyer. Buyer is obliged to inspect the Product immediately upon delivery in order to detect if the Product is subject to any obvious defects or non-conformities. Seller is entitled to reject any complaint on non-conformities that should have been identified by such inspection.
17.5 Notification. Complaints concerning non-conforming deliveries must be made in writing without undue delay, and no later than 5 working days after delivery or after identifying the hidden defect. If Buyer fails to do so, Buyer will lose the right to a replacement delivery, cf. clause 17.1, and to claim remedies of any non-conformities.
17.6 Formalities of the complaint. Buyer’s complaint shall comprise comprehensive information on:
a) Extent of the defect
b) Nature of the defect
c) Evidence of the defect
d)Proposal for the solution/stating the claim
e)Time of delivery and invoice number
17.7 Remedy. Remedy takes place at Seller’s discretion as either (i) repair, replacement delivery or subsequent delivery, or (ii) suggestion of a reasonable way to bypass the defect.
17.8 If a defective unit is replaced with another unit (as part of a Service Agreement or similar) the defective unit shall belong to the manufacturer or Seller. If Buyer is responsible for returning the defective unit to Seller or the manufacturer, this shall be done in order for the defective unit to reach Seller or the manufacturer within 20 days from receipt of the replacement unit. If the defective unit has not been received within this date, Buyer will be invoiced for the replacement unit according to the list price of such unit.
17.9 Claim for remedy. In case of significant defects and Seller has not yet remedied the defects, Buyer may, by written notification to Seller, set a reasonable date for remedy (minimum 30 working days).
17.10 Termination. In case of significant defects and if the defects have not been essentially remedied before the time limit determined by Buyer under clause 17.9, Buyer may terminate the Agreement in respect of the non-conforming part of the delivery.
17.11 Compensation. If Buyer terminates the agreement, Buyer is entitled to claim compensation from Seller for any direct extra costs incurred on Buyer when acquiring corresponding equipment from somewhere else. Buyer can only make the Seller liable for reasonable and direct, verified losses that Buyer could not have avoided.
17.12 Limitation of liability. Regardless of the above, Seller’s liability pertaining to defects is always limited to 50% (maximum DKK 5,000,000) of the invoice value of the defective Product(s).
17.13 In the event of Buyer’s justified termination in consequence of Seller’s breach, Buyer is released from all future payments under the Agreement. In addition, neither party will have any further claims against the other party in consequence of the termination.
17.14 Except what is set out under clauses 1, 17.11 and 17.12, Seller has no liability in respect to defects. Seller is not liable for any loss caused by the defect, including loss on operations, loss of profits, increased resource consumption, consequential damages, penalties, lost or postponed sales, loss of data or costs for data re-establishment, freight costs, secondary damages or indirect losses, regardless of the reason for such loss. This applies regardless of whether Buyer terminates or maintains the purchase.
17.15 Claim for damages. Any claim for damages must be made in writing to Seller no later than 12 months after the time of the tortious act; failing that the claim will be regarded as lapsed.
17.16 If Buyer’s complaint is found unjustified, Seller is entitled to have costs incurred on Seller in consequence of Buyer’s complaint covered.
18. Mutual rules for any defects and/or delays
18.1 These Terms set out an exhaustive description of Seller’s liability in the event of defects or delays and Buyer explicitly disclaims any and all other powers and rights.
18.2 In the event of termination by Buyer in accordance with clause 4 or 17.10, each party will return what they have received from the other party. Apart from that, the parties have no other claims against each other apart from what already is set out under clause 14 and 17.
18.3Buyer can only make Seller liable for reasonable and direct, verified losses that Buyer could not have avoided.
18.4 Seller is under no circumstances liable for any use by Buyer of the services provided by Seller. Buyer is obliged to indemnify Seller of any claims made by third party against Seller arising out of or related to Seller’s services or deliveries to Buyer that lie beyond the above-mentioned limitations with respect to amount and type.
19.1 Liability. Each party is liable for its own actions and omissions under Danish law with the limitations following from the Agreement.
19.2 Seller’s total liability for damages under the Agreement cannot exceed 50% (a maximum of DKK 5,000,000) of the invoice value.
19.3 Seller is not liable for any loss on operations, loss of profits, increased resource consumption, consequential damages, penalties, lost or postponed sales, loss of data or costs for data re-establishment, freight costs, secondary damages or indirect losses, regardless of the reason for such loss.
19.4 Seller or Seller’s suppliers cannot be made liable for damages or losses in connection with the delivered Products, apart from the extent explicitly set out under these Terms.
19.5 Product liability If the Products delivered are non-conforming and thereby cause damage to persons, movable property or immovable property, Seller shall only be liable for Buyer’s or third party’s damage or loss to the extent such liability follows from mandatory rules of law.
19.6 Seller is not liable for indirect damages, consequential damages, loss on operations, loss of earnings and secondary damages caused by the Product or resulting from the use of the Product.
19.7 Indemnification. To the extent that mandatory rules of law do not constitute a hindrance, Buyer must indemnify Seller to the extent Seller is liable towards third party in the event of damage or loss caused by the delivered Product to third party’s person, movable property or immovable property to the same extent as Seller’s liability is limited towards Buyer.
19.8 Exemption from liability The following circumstances entail exemption from liability provided they prevent the performance of the agreement or make the fulfilment unreasonably onerous: industrial dispute and any other circumstance beyond the control of the parties as a result of – but not limited to – fire, war, mobilisation or military call-up of equivalent scale, request, seizure, currency restrictions, lack of transport, import/export restrictions, rebellions and riots, failure in power supply or telecommunications, legislative changes or issued administrative orders, natural disasters, sabotage, terror or vandalism (including computer viruses and hacking), product scarcity, defects or delay in deliveries from sub-suppliers or other circumstances which Seller has no control of, the Seller is exempt from liability towards Buyer. Circumstances at a sub-supplier is considered force majeure if the sub-supplier is faced with an impediment comprised by the above, and which Seller should not have prevented or overcome.
19.9 In such cases, Seller is entitled to cancel the order in whole or in part or to deliver the order, when the performance impediment ceases.
19.10 If the performance impediment lasts for more than 60 days, any party may terminate the Agreement by giving 15 days’ written notice to the other Party.
19.11 In case of force majeure or circumstances described above under clause 8, Buyer cannot claim proportional reduction, specific performance or compensation of any kind.
20. Duration and termination of the Agreement
20.1 Agreements concluded for a specific period. The agreement runs according to the period agreed between Seller and Buyer, as set out in the Agreement. Subsequently, Seller reserves the right to extend the Agreement automatically by 1 year at a time, unless the Agreement has been terminated in advance subject to 3 months’ written notice to expire at the end of the period agreed between the parties (the period is set out in the Agreement).
20.2 Continuous agreements, like e.g. Wingmen Advantage agreements and Consultancy Agreements are terminable by either party by giving 3 months’ written notice to expire on the last day of a month, unless another term of notice is set out in the Agreement.
21. Personal data
21.1 Buyer is responsible for complying with applicable law in connection with Buyer’s use of Seller’s Products for the processing of personal data.
21.3 Before processing any personal data by Seller, the Parties must accede to Seller’s standard data processing agreement.
22. Duty of confidentiality
22.1 Each party is obliged to treat all information about the other party and about the contractual relationship confidentially. This also applies after termination of the Agreement. Unless otherwise stated in the Agreement, Seller is entitled to disclose the existence and kind of cooperation to prospective customers and cooperation partners.
23.1 Neither party may assign its rights and obligations to a third party without the consent of the other party except assignment in connection with a transfer of Seller’s entire business or part thereof. Consent may only be refused if there are objective reasonable grounds for doing so.
24. Disputes and governing law
24.1 This Agreement and all addendums hereto shall be governed by Danish law.
24.2 Any dispute that may arise out of this Agreement, including disputes on the existence or legal effect of the Agreement, shall be attempted settled by mediation before the Danish Institute of Arbitration according to the rules for such adopted by the Institute of Arbitration and that apply when request for mediation is submitted.
24.3 If mediation is closed without the dispute being solved, the dispute shall be settled by arbitration before the Danish Institute of Arbitration according to the rules for such adopted by the Institute of Arbitration and that apply when the arbitration proceedings are initiated. Unless the parties agree that the arbitration tribunal shall consist of only one arbitrator, each party shall appoint one arbitrator and the Chair of the arbitration tribunal shall be appointed by the Institute of Arbitration.
25. Handing over and acceptance of the above terms
25.1 These Terms are handed over to – and accepted by – Buyer upon Buyer’s conclusion of agreement to purchase Products, including hardware, software, consultancy services, service agreements and/or Wingmen Advantage agreements from Seller.