Wittra Sweden AB - General Terms and Conditions for Hardware

Posted: January 1, 2021
Effective: January 1, 2021

1. Definitions

1.1. “Seller” refers to Wittra Sweden AB, a Swedish company with its registered address at Rosenlundsgatan 40, 118 53 Stockholm, Sweden; the VAT number is 556932-0988.

1.2. “Customer” refers to any legal entity or natural person with which/whom an agreement of sale has been made or quotation has been submitted by the Seller.

1.3. “Party” refers to the Seller or the Customer.

1.4. “Terms” refer to these General Terms & Conditions for Hardware.

1.5. “Product” refers to any hardware product and accessories to such products purchased by the Customer from the Seller under these Terms.

1.6. “Prices” refer to the prices displayed on the Seller’s Website or other price list from theSeller defining the price for the Product and/or any other service.

1.7. “Order” means every individual agreement between the Customer and the Seller regarding the sale and purchase of Products. These General Terms shall constitute an integral part of any such Order.

1.8. “Website” refers to the Seller’s website www.wittra.io.

1.9. “Wittra Cloud Service” means the Seller’s cloud-based portal and related services available on the Website.

2. Applicability

2.1. The Terms apply to all requests, quotations, purchase orders, order confirmations orOrders for the purchase of Products concluded between the Seller and the Customer.

2.2. In case of conflict between provisions included in these Terms and an Order , and provided that the circumstances surrounding the provision of the Products do not apparently give rise to another interpretation, the parts of the Order prepared by the Parties shall take precedence over these Terms.

2.3. These Terms replace any previous agreements and negotiations and take precedence before any and all agreements, terms, and other conditions associated with the sales of the Products.

2.4. Customer’s acceptance must be limited to the Terms without any modification, addition or alteration and any differing conditions or terms of the Customer are herewith rejected and shall not apply.

3. Formation of an agreement

3.1. The Parties are legally bound by an agreement as soon as the Seller has submitted a written confirmation of an order of the Customer.

3.2. By submitting an order upon receipt of a quotation from the Seller, the Customer agrees that the Terms herein in their entirety shall apply, unless otherwise agreed.

3.3. Any condition stated in an order, or in any other document drawn up by the Customer, that is contrary to the written confirmation of the Seller or the Terms herein, shall not be binding for Seller, unless otherwise explicitly agreed by the Parties. Should the Seller fail to object to such a condition, this omission shall not be construed as an acceptance, partial or entire, of an alteration of the Terms. On the contrary, the Terms are still applicable.

3.4. Orders, after having been confirmed by the Seller, may not be cancelled by the Customer, unless otherwise agreed by the Seller in writing.

4. Products

4.1. The Products are hardware components and accessories that are intended to be connected by the Customer to the Wittra Cloud Service, including, but not limited to sensors, networks of sensors, mesh routers and gateways. The list of products and corresponding prices is available on the Website. The Seller reserves the right to make changes to such list, in relation to both product availability and pricing. 

4.2. To make use of the Product in its intended capacity, the Customer understands that it must acquire access to the Wittra Cloud Service. Information about this service is found on the Website.

5. Prices and Payment

5.1. Prices are quoted as net prices in the currency indicated in the invoice and do not include any applicable value added tax or any other tax which is to be paid by the Customer according to applicable law.

5.2. Upon variations in exchange rates exceeding 2 % up to the time of invoicing of theProducts, the Seller may increase the indicated prices.

5.3. The Seller has the right to unilaterally increase the Prices at any moment, including but not limited to circumstances resulting in increased costs for the Seller, such as for example changes in raw material prices, exchange rates, customs fees, taxed or other public fees or charges, by giving a written notice thereof to the Customer. The new Price will become effective for all orders made after the date of the notice.

5.4. Unless otherwise agreed in writing, payment of invoices shall be made within thirty (30)calendar days from the date of the order confirmation.5.5. An interest of eight (8) % per annum above the base interest rate of LIBOR/STIBOR(depending on the applicable market) shall be charged on all overdue payments.

5.6. The Seller shall have the right to refuse or postpone any delivery in whole or in part, as determined in the sole discretion of the Seller, until the Seller has received in cleared funds full payment of any unpaid invoices.

5.7. If the Customer fails to pay any monies within thirty (30) calendar days following the due date, the Seller is entitled to terminate the order under these Terms by notice in writing to the Customer, with immediate effect. In such event, the Customer agrees to, in addition to any other obligations, indemnify the Seller, waive any and all rights and claims in relation to such termination and return the delivered Products to the Seller without undue delay.

6. Retention of title

6.1. Legal and beneficial title to the delivered Products shall remain with the Seller until theSeller has received payment in full of the purchase price whereupon such title shall pass to the Customer. The Customer shall carry all risk for such Products after delivery by theSeller.

6.2. The Customer shall indemnify the Seller to the full replacement value for any and allProducts that have been destroyed or otherwise become unsellable or inappropriate for their intended use while in the possession of the Customer and before payment in full of the purchase price.

7. Delivery

7.1. Delivery clauses shall be interpreted in accordance with INCOTERMS in the applicable wording on the date of the Order. If no delivery clause has been agreed upon, delivery “ExWorks” shall apply.

7.2. If the delivery is to be made within a certain period, the period shall begin on the date theOrder was entered into, unless otherwise expressly agreed in writing. However, the delivery term shall under no circumstances begin before (i) the Seller has received payment, if such is due prior to the commencement of manufacturing of the Product or has otherwise been agreed upon, and (ii) the Seller has received required licenses, authorizations, technical data and instructions, if applicable.

7.3. If the Customer defaults in taking the delivery, the Seller shall be entitled to claim refund of any incurred expenditures. In the event of such default, the Customer shall bear all risks of loss of or damage to the Products starting from the agreed date of taking the delivery.

7.4. If the Seller does not deliver on time, the Customer may demand delivery within a reasonable final time, by giving written notice to the Seller. Should the Seller not deliver within this time, the Customer is entitled to cancel the Order by giving the Seller written notice to that effect.

7.5. If the Customer cancels the Order pursuant to section 7.4, the Customer is entitled to compensation from the Seller for the direct additional expenditures for procuring a corresponding Product from someone else. The right to such compensation is, however, limited to 7.5 % of the price of the Product. If the Customer does not cancel the Order, it is not entitled to any compensation for the Seller’s delay.

8. Complaints and return of Products

8.1. The Customer shall examine the Product in accordance with good industry practice immediately after delivery. Any obvious defect or transport damage subject to complaint shall be notified to the Seller in writing within ten (10) calendar days from delivery. If theCustomer fails to notify the Seller within the specified time limit, the Products shall be deemed irrevocably accepted.

8.2. Complaints concerning order entry discrepancies and delivered quantities shall be notified to the Seller in writing within five (5) calendar days from delivery. If the Customer fails to notify the Seller within the specified time limit, the Products shall be deemed irrevocably accepted.

8.3. Any complaint concerning hidden defects must be notified in exact description to theSeller in writing without undue delay and in any event no later than fifteen (15) calendar days after the Customer has noticed or ought to have noticed the hidden effect. However, no claims for hidden defects may be brought against the Seller after the end of the guarantee period stipulated in section 10.1 below. The hidden defect must be confirmed by both Parties.

8.4. Would the Customer receive any complaint regarding a user injury or possible injury, the complaint must be reported immediately to the Seller.

8.5. Under no circumstances can the Customer re-package any Products, which have been returned to the Customer by its customers. Products returned to the Customer by its customers may only be redistributed if in their original shape and in their original packaging.

8.6. Under no circumstances shall the Customer initiate recall nor return Products without the permission of the Seller. The Seller must receive the returned Products in the same condition as when they were delivered to the Customer and in the original packaging that has neither been tampered with nor damaged.

9. Product usage

9.1. When using the Product for the first time and to obtain full and correct functionality of the Product, the Customer must fully charge the battery of the Product and upgrade the software included in the Product in accordance with the startup instructions included in the delivery of the Product.

10. Liability for defects

10.1. The Seller undertakes to deliver the Products free from defects in construction, material and workmanship and properly packed. The Seller is only liable for defects which manifest within one year from the day that the risk for the Product passed to the Customer(guarantee period). When the Customer purchases the Product for the purpose of reselling it to third parties, the guarantee period of one year starts on the date that theProduct was delivered to the third party, however, the guarantee period can never be longer than 18 months from the day that the risk for the Product passed to the Customer.The guarantee period does not include wear components, which normally have a durability of less than one year.

10.2. The Seller is not responsible in any way for damage or claims resulting from misusage, improper use, alteration, modification or tampering, improper maintenance, storage or improper or careless handling, noncompliance with section “Product usage”, any usage outside of the scope of the product manual provided by the Seller or found on the Website or any defects resulting from normal wear and tear of the Products or from inaccurate, ambiguous or incomplete information from the Customer. Should the Seller not be liable for the defect, the Seller is entitled to compensation for the costs which have been caused by the complaint.

10.3. The Seller’s sole liability for a claim relating to the Products shall be limited to repair or replacement or refund of returned Products at the purchase price, at Seller’s sole discretion. Replacement products or replacement parts, which the Seller has provided to the Customer, are subject to the guarantee period set out in section 10.1.

10.4. The Customer shall bear the cost and risk of transportation of a defective Product to theSeller. The Seller shall bear the cost and risk of transportation of the replacement Product to the place of delivery.

10.5. If the Seller has developed a product in collaboration with the Customer, under an agreement between the Parties and at the Seller’s own cost, the Seller is in no regard responsible for any delay or defect of theProduct. Further, the Seller is in no regard responsible for any delay or defect of a Product which the Seller has lended or transferred to the Customer without compensation.

10.6. THE SELLER’S LIABILITY FOR DEFECTS OR OTHER DEFICIENCIES IN DELIVERED PRODUCTS IS LIMITED TO THAT EXPRESSLY STATED HEREIN, AND THE SELLER EXPLICITLY DISCLAIMS ANY AND ALL OTHER LIABILITY, INCLUDING IMPLIED WARRANTIES OF SUITABILITY,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY OTHER MATTER.

11. Product liability

11.1. The Seller shall bear the product liability (personal injury and property damage) caused by defective Products in accordance with applicable product liability law. To the extent the damage arises from the circumstances set forth in Section 10.4, then the Seller has no liability of any kind and the Customer shall indemnify and hold harmless the Seller accordingly.

12. Liability for damages and limitation of liability

12.1. In case of delay or defect, the Customer is entitled to the remedies stated in sections 7and 10.

12.2. The Seller’s liability for breach of contract shall be limited to the purchase price for theProducts.

12.3. The Seller’s liability under clause 12.2 includes liability for damage to property as well as for death or personal injury caused by the goods to any person.

12.4. In no event shall the Seller have any liability whatsoever, including under any warranty or indemnification, to the Customer, his customers or other third parties for payment of any consequential, incidental, indirect, special or tort damages of any kind, including, but not limited to, loss of profit, loss of use, loss of production and loss of goodwill and Seller’s liability shall in all cases be limited to the purchase price for the Products, which gave rise to the claim.

12.5. The Customer may not invoke any other sanctions against the Seller than those expressly set out in the agreement.

12.6. The Customer shall indemnify, defend and hold harmless the Seller from and against all claims, suits, actions liabilities, damages and losses (including attorneys’ fees) from third parties, including injury or death of any person or damage to property unless such injury, death or damage is directly caused by an actual and evidenced defect in a Product delivered by the Seller to the Customer.

13. Intellectual property rights and confidentiality

13.1. Unless otherwise stated, the intellectual property relating to the Products is owned by theSeller or its licensors.

13.2. The Customer is bound to respect the Seller’s intellectual property rights. The Seller’s sales of Products do not include transfer of the Seller’s intellectual property rights.

13.3. The Customer shall not use the intellectual property rights of the Seller without the Seller’s explicit prior written approval.

13.4. The Seller shall defend and indemnify the Customer against any claim by a non-affiliated third party alleging that Products furnished under these Terms infringe any intellectual property rights provided that the Customer promptly notifies the Seller in writing of the claim, gives the Seller sole authority to control defence and settlement of the claim, and provides the Seller with full disclosure and reasonable assistance as required to defend the claim.

13.5. Section 11.4 shall not apply and the Seller shall have no obligation or liability with respect to any claim based upon Products that have been modified, or revised, the combination of any Products with other products or services when such combination is a basis of the alleged infringement, failure of the Customer to implement any update provided by theSeller that would have prevented the claim, unauthorized use of Products, or Products made or performed to the Customer’s specifications.

13.6. In addition to confidential Information, all information obtained by the Customer or furnished by the Seller relating to the Seller or associated with the Products is proprietary and confidential and Customer shall not without the Seller’s prior written approval disclose any such information to any other person or use such information itself for any purpose other than in accordance with these Terms.

13.7. The obligation of confidentiality in these Terms shall bind all employees, agents and consultants retained by the Customer.

14. Permits, Laws and Regulations

14.1. The Customer shall be solely responsible for permits, inspections, information or other requirements concerning the use or application of the Products and that the use of application for the Products complies with applicable laws and regulations.

15. Force Majeure

15.1. Neither Party shall be held liable or be deemed for any delay or failure to perform under these Terms due to circumstances beyond the reasonable control of that Party (force majeure). This shall include but not be limited to nature disasters, war, conflicts, general mobilization, acts of civil or military authorities, requisition, seizure, currency restrictions, international sanctions or embargo, shortage of transport, general shortage of materials, labor conflicts, restrictions in the use of power, fires and defects or delays in deliveries by subcontractors caused by any such circumstance referred to in this condition.

15.2. When such circumstances cause a delay or failure in performance and when they cease todo so the Party affected by such circumstances shall promptly notify the other Party in writing.

15.3. If the events and circumstances persist for more than three (3) months, either Party may terminate the agreement under these Terms by written notice to the other Party, with no liability.

16. Applicable law and dispute resolution

16.1. Except to the extent the Customer is a natural person and applicable mandatory local laws provides otherwise, these Terms shall be governed and construed in all respects by the laws of Sweden, without application of its conflict of laws principles.

16.2. Subject to section 16.3, any dispute, controversy or claim arising out of or in connection with the Terms, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of theStockholm Chamber of Commerce (SCC). The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion decides, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators. The seat of the arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be the English language.

16.3. If the Customer is a natural person, any dispute, controversy or claim arising out of or in connection with the Order, or the breach, termination or invalidity thereof, shall be settled by Swedish general courts, with Stockholm city court as the first instance, unless applicable mandatory local law provides otherwise.