Terms & Conditions
GENERAL CONDITIONS OF SALE
OF WAHU S.R.L. PRODUCTS
VALIDITY AND EFFECTIVENESS
The sale and supply of WAHU S.r.l. (“WAHU”) products is governed by these general conditions of sale (“GCS”). The acceptance by a purchaser of an offer or the confirmation of an order by WAHU, however it is carried out, results in the finalisation of a contract between WAHU and the purchaser and the automatic application and binding nature of this GCS. It is agreed that, following acceptance by the purchaser of the offer, the relative supply may not be cancelled without the prior written consent of WAHU. An offer for sale formulated by WAHU (“Offer”) shall remain valid for 30 calendar days starting from the date it is sent to the purchaser, or other term indicated in the Offer, limited to the supply of what is quoted in the same. After the aforementioned deadline, an Offer shall no longer be valid. Any amendment, addition or derogation to the GCS or any part thereof shall only be valid if it has been expressly accepted in writing by WAHU. Therefore, any general conditions of purchase prepared by the purchaser shall not be applicable in the relations between the parties unless expressly accepted in writing by WAHU and in any case shall not invalidate this GCS, with which it must be coordinated. WAHU reserves the right to modify the GCS at any time. Should there be any cases of discrepancies or contradictions between the Italian and English versions, the Italian text shall prevail.
PRICES AND PAYMENTS
Unless otherwise agreed in writing between the parties, the prices indicated in Offers or in the price list are in Dollars, excluding VAT, not including packing and transport costs.
Unless otherwise agreed in writing between the parties, the consideration shall be invoiced as follows:
- 100% at acceptance by the purchaser of the offer
Payment must be made as follows:
- 100% upon receipt of the invoice
by bank transfer or other means as indicated in the Offer. Purchaser is not authorised to offset payments against any claims on its part against WAHU.
Upon full payment of the first invoice, the order shall be deemed confirmed.
Any delay or irregularity in payments shall give WAHU the right to request, starting from the due date set for payment and without formal notice being required, default interest on the sum still due to the extent of the rate set by the laws currently in force in regard to commercial transactions (in particular, Legislative Decree 231/2002, as amended) in any case without prejudice to the right of WAHU to request compensation for any greater damage suffered.
Furthermore, in such cases, WAHU reserves the right to suspend any supplies in progress, even if they are not related to the payment in question; and/or change the payment and discount methods for subsequent supplies, including requesting advance payment or the issuance of additional guaranties.
WAHU reserves the right to adjust the prices if, purely by the way of example, there are changes in the conditions underlying the formation of the price, such as monetary fluctuations or state/administrative taxes, customs duties, additional taxes, which have come into force in the period between the Offer and the agreed delivery term.
RETENTION OF TITLE
WAHU shall retain the full legal title to and ownership of the delivered Products WAHU until full payment of the entire agreed consideration is made and therefore, the purchaser shall take all necessary measures to prevent damage to this ownership right of WAHU.
Unless otherwise agreed in writing by the parties, the Products shall be delivered ex works (EXWORKS Incoterms 2020) and therefore, the risks relating to the loss of Products shall be under the responsibility of the purchaser when the Products are delivered to the carrier.
WAHU will be available to assess the particular requests of purchaser regarding transport and packaging of the Products, it being agreed that the resulting additional costs shall be borne by the purchaser and, in any case, the risk of loss of the Products during transportation shall be under the purchaser’s responsibility.
If, for reasons not attributable to WAHU, the purchaser or the carrier designated by the same does not take delivery of the Products, WAHU, subject to notice to the purchaser, may store them, charging the latter for any additional costs incurred.
WAHU shall communicate the production lead time of the Products to purchaser, or indicative delivery dates; these terms shall not to be considered essential but shall be indicative and shall be calculated in working days.
Therefore, WAHU shall not be held liable for any damage resulting from early or late delivery, whether total or partial, shall be excluded.
PRODUCT CONFORMITY AND WARRANTY
- WAHU warrants that the Products (“Warranty”):
shall conform to the technical specifications (“Technical Specifications”) referred to in Offer
- shall be free from defects in design and/or material and/or workmanship directly attributable to WAHUand such as to render these defective Products unsuitable in relation to its uses, applications and functions expressly described in the user and warnings manual (“Manual”);
- shall have CE marking provided that purchasers shall remain responsible for checking any discrepancies between the above-mentioned CE regulations and those of the countries the Products are sold to, keeping WAHU indemnified in this respect.
It is agreed that the validity of this Warranty shall be subject to full payment for the Products and, unless otherwise agreed in writing, shall have a duration of 12 months starting from the date of delivery of the Products.
It is agreed that the validity of this Warranty shall be subject to full payment for the Products and, unless otherwise agreed in writing, shall have a duration of 12 months starting from the date of delivery of the Products.
The Warranty shall be subject to Products have been correctly stored and used in accordance with the instructions contained in the Manual and Technical Specifications. Furthermore, it is agreed that this Warranty shall not apply to: i) consumable parts, such as batteries or protective covers, subject to deterioration over time, or aesthetic damage except in the event of defects in materials or workmanship; ii) damage caused by use with third party components or products that do not comply with the Technical Specifications; iii) accidental damage or damage derived from improper or incorrect use, fire, contact with liquids, earthquake or other external causes; iv) damages derived from use of the Product contrary to what is indicated in the Manual and/or Technical Specifications; v) damage derived from interventions, repairs, modifications or alterations carried out by personnel not authorised by WAHU or by the purchaser not in accordance with the instructions provided by WAHU; vi) defects caused by normal wear and tear or otherwise due to the normal obsolescence of the Product. The purchaser is obliged to verify the conformity of the Products and the absence of defects within 10 calendar days from the date of delivery and, in any case, before any use of the same. The notice of any non-conformity or defects must be made: i) for any visible defects, no later than 10 calendar days from the date of delivery of the Products; and ii) for any hidden and/ or fuctioning defects – that is, those detectable only after first use – within and not later than 10 calendar days from the discovery of the defect and, in any case, within and not beyond the warranty period.
Complaints must be notified by the purchaser in writing to WAHU indicating the details of detected defects or non-conformities. It is agreed that the Warranty shall become null and void if the purchase does not allow WAHU to carry out the necessary checks to ascertain any defects and/or their cause or if the purchaser, upon request by WAHU, fails to return the faulty Products within 10 calendar days of receipt of this request. Following the receipt of the notice, WAHU, at its sole discretion and sustaining all related costs, shall: i) repair the defective Products; b) supply (DAP Incoterms 2020) at its own expense at the premises of the purchaser Products of the same type and quantity of those found to be defective; c) issuance of a credit note in favour of the purchaser for an amount equal to the value indicated on the invoice of the returned defective Products. It is agreed that Products that are returned and not repaired but replaced shall become the property of WAHU upon delivery.
Should identified and reported Product defects not fall within the Warranty period or should they not be attributable to WAHU, the latter provide support to the purchaser and the costs of repair and/or replacement of the Products shall be fully borne by the purchaser.
It is agreed that this Warranty shall replace the legal warranties for defects and non-conformity and shall exclude any other possible liability of WAHU for defects and non-conformity whatever arising from supplied Products.
The liability of WAHU for any reason resulting from the supply of the Products shall in no case exceed the price of the defective Product to which this liability arises.
In no event shall WAHU be liable for loss of profit or for failure to use or technical shutdown of the Product, for claims by the purchaser and/or third parties relating to the damages for the aforementioned or for any other damages, even indirect or consequential.
In no way, except as expressly indicated in this clause, shall the supply of the Products be intended or interpreted as a transfer, assignment or grant of any license or other right on the industrial or intellectual property rights of the Product (or any parts thereof) which shall remain the exclusive ownership of WAHU. Furthermore, WAHU retains full property rights on all designs and documentation that have been delivered to the purchaser, the latter undertaking not to transmit them to third parties or use them for purposes other than those provided for in the supply of the Products. WAHU grants the purchaser a perpetual, non-exclusive, non-sublicensable, non-transferable license, except as provided for in this clause, valid worldwide, for using the “object code” of the software installed on the Product (“Software License”). No other use is permitted. WAHUmay terminate the Software License in the event that the purchaser breaches these terms and conditions. The price of the Product also includes the granting of the Software License referred to in this clause. It is agreed that the purchaser may in no case: i) carry out any sale, transfer, license, decoding, disassembly or redistribution of the software and the interface software; ii) copy, disclose, distribute or display such software and interface software; iii) make such software or interface software accessible to others or allow unauthorised use.
The Parties mutually acknowledge that the supply of the Products could result in the need for WAHU to make confidential information available to the purchaser (“Confidential Information”) and that, therefore, for the purposes of this clause, WAHU may be defined as the “Proprietary Party”; and the purchaser as the “Recipient”.
Confidential Information shall be received and kept in the strictest confidence by the Recipient, who undertakes not to disclose Confidential Information to third parties, using the same degree of diligence that you would normally use to protect its assets and to respect – and to ensure that its employees and collaborators will respect too – the confidentiality obligations related to all Confidential Information. The Recipient may not copy, duplicate, reproduce or record the Confidential Information in any format or by any means except to the extent strictly necessary to use the Products.
If a disclosure of the Confidential Information is caused by acts or facts directly or indirectly attributable to the Recipient and/or its employees, the same shall be obliged to compensate the Proprietary Party for any damage that is directly or indirectly related to the aforementioned disclosure.
The confidentiality obligations referred to in this clause shall come into force from the time of validity and effectiveness of the GCS for a period of 3 years.
FORCE MAJEURE AND EXCESSIVE BURDEN
The Parties shall not be held liable for any breaches related to the terms and conditions defined in these GCS and the relative Offer, should failure by affected Party be caused by force majeure such as, for example: natural disasters, national strikes, governmental measures concerning the transfer of goods, services or currency, etc., or in the event that performance by one of the parties has become excessively burdensome due to the occurrence of unforeseen or unforeseeable events. In the above-mentioned cases, the party whose performance is directly or indirectly affected by force majeure or which has become excessively burdensome shall be required to promptly notify the other party, undertaking – simultaneously – to take all possible measures to remove the force majeure causes and resume the performance as soon as possible. If this is not possible, the affected party who was obliged to perform but was impeded may request the contract’s termination.
Autonomy of the Parties. WAHU and the purchaser are and shall remain independent parties, and nothing provided for in an Offer or by these GTS may be interpreted in such a way as to create a franchise relationship, or a joint venture between the parties. The purchaser does not act or operate on behalf of WAHUand has no power to assume commitments in its name and on its behalf. The Offer and these GCS do not establish any exclusive relationship. Privacy. The parties declare and guarantee that the collection, use, disclosure and storage of any personal data, in relation to and/or in execution and/or connected to the supply of the Products, shall be performed in full compliance with EU Regulation 2016/679, as amended. Any processing of personal data carried out by the parties for purposes that are not strictly related to the contractual relationship established by the parties with these GCS is expressly prohibited. Partial nullity. The parties agree that if one or more clauses contained in these GCS are considered void or ineffective, such nullity or ineffectiveness shall be limited to said clauses and shall not result in the invalidity of all the GCS. The parties in any case undertake to negotiate in good faith in order to replace invalid or ineffective clauses with other clauses that as much as possible ensure the same effects of the replaced clauses, having regard to the purposes of the GCS.
JURISDICTION AND RELEVANT COURT
The parties declare that Italian law, irrespective of its conflict of laws rules, shall apply to and govern these GCS and the Offer and the obligations arising from the same, albeit not expressly defined in these GCS. The Parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods. Should disputes arise between the Parties regarding the interpretation, execution and termination of these GCS and the Offer (including interpretation of this art. 11) that cannot be settled amicably, the same shall be subject to the exclusive jurisdiction of the Court of Milan.
END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is made and entered into by and between WAHU S.r.l. (hereinafter “WAHU” or “Licensor”), having offices at Via San Martino 12, 20122 Milan, Italy, and you as the end-user of the Software (hereinafter, “Licensee” or “you”) and sets out the terms and conditions governing the end-user’s right to use licensed Software. To the extent of this Agreement Software shall mean software, firmware, middleware, software development kit (“SDK”) for the Unity or the Unreal engine development environment, demo virtual reality applications built for the Unity or the Unreal engine development environment, including any updates or upgrades thereof (collectively, “Software”) that is part of the WAHUproduct, provided to Licensee for use solely by Licensee in using WAHU product and the provisions herein shall apply with respect to such Software. By using the Software, you indicate your acceptance of these terms and conditions, at which point this Agreement will become a legally binding agreement between you and WAHU.
- License Grant.During the Term (as defined below), subject to the terms and conditions of this Agreement, WAHU grants to Licensee a non-exclusive, revocable, non-transferable, non-sublicensable, worldwide, license to use the Software for the use of the WAHU product only in the ordinary course of Licensee’s business.
- License Restrictions. The Software is licensed to Licensee, not sold. The Licensee may not make, have made, import, use, copy, reproduce, distribute, display, publish, sell, re-sell, lease, download, install or sub-license the Software, in whole or in part, except as expressly provided for in this Agreement. Licensee may not modify, improve, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software or otherwise attempt to (a) defeat, avoid, by-pass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software including, without limitation, any such mechanism used to restrict or control the functionality of the Software, or (b) derive the source code or the underlying ideas, algorithms, structure, or organization form of the Software. Licensee will not allow, at any time, including during and after the term of the license, the Software or any portions or copies thereof in any form to become available to any third parties.
- Ownership.The Software is protected by Italian and international intellectual property laws. Except for the license granted under this Agreement, all right, title and interest in and to the Software (including associated intellectual property rights and, as applicable, any Maintenance Releases as defined hereinafter) are and will remain vested in WAHU. Licensee acknowledges that no rights, license or interest to any WAHU’s trademarks are granted hereunder. Licensee acknowledges that unauthorized reproduction or distribution of this Software, or any portion of it, may result in severe civil and criminal penalties.
- Upgrades/Updates.WAHU may, at its sole discretion, provide updates or upgrades to the Software (hereinafter the “Maintenance Releases”). In that case, Licensee shall have the same rights and obligations under such Maintenance Releases as it has for the versions of the Software initially provided to Licensee hereunder. Licensee recognizes that WAHU is not obligated to provide any Maintenance Releases to, or support for, the Software.
- Data Integrity/Loss.Licensee is responsible for the integrity and availability, including preventing the loss of data that the Licenses generates, uses, analyzes, manages, or stores in connection with or through use of this Software, including without limitation, investigating and implementing industry appropriate policies and procedures regarding the provision of access to your data, monitoring access and use of your data, conducting routine backups and archiving of your data, and ensuring the adequacy of anti-virus software. Accordingly, the Licenses agree that WAHU is not responsible for any inability to access, loss or corruption of data as a result of your use of this Software and WAHU has no liability to you in connection with such inability to access, loss or corruption of data.
- Term of License.This Agreement shall be in effect from the acceptance of this Agreement by Licensee and shall remain in effect until the entire use of the WAHU product by the Licensee (“Term”). This Agreement will otherwise terminate if revoked by WAHU or if Licensee fails to comply with any term or condition of this Agreement. Licensee agrees upon termination of this Agreement for any reason to immediately discontinue use of the Software.
- Limited Warranty.Except and to the extent expressly provided in the foregoing, the Software and, as applicable in the Maintenance Releases is provided “AS IS” and WAHU expressly disclaims all warranties and conditions regarding the Software and results generated by the Software. WAHU does not warrant that the functions contained in the Software will meet Licensee’s requirement, or that the operation of the Software will be error free or uninterrupted.
- Limitation of Liability.In no event shall WAHU be liable under any theory of contract, tort, strict liability or other legal or equitable theory for any indirect, consequential or incidental damages, even if WAHU has been advised of the possibility thereof including, without limitation, lost profits, lost data, interruption of business, lost business revenue, other economic loss or any loss of recorded data arising out of the use of or inability to use the Software.
- Survival.The limitations of liability and ownership rights of WAHU contained herein and Licensee’s obligations following termination of this Agreement shall survive the termination of this Agreement for any reason.
- Contact.Any questions regarding legal rights, duties, obligations, or restrictions associated with the Software hereunder should be directed to WAHU S.r.l. via San Martino 12, 20122 Milan, Italy or email@example.com.
- Third Party Software.This Software includes or may include third party software (“Third Party Software”). License to use such Third-Party Software provided by WAHU to Licensee herein is subject to WAHU and the Licensee’s continued commitment to and compliance with the respective license terms applicable between WAHU and such Third Party. The Agreement accompanying the Software does not alter any rights or obligations WAHU and the Licensee may have under those Third Party Software’s licenses.
- Confidentiality.In connection with this Agreement, WAHU discloses, gets access and/or makes available to the Licensee documentation and/or confidential information related or in connection with the Software (hereinafter the “Confidential Information”). Ownership and/or any other legitimate rights, title and interest in Confidential Information remain with WAHU; no disclosure herein shall entail transfer of Confidential Information ownership, any other right, interest or title in Confidential Information or in relation to it. The Licensee shall, for the duration of Term and 5 (five) years after the Term, keep in strict secrecy all disclosed Confidential Information and shall not, without the prior written permission of WAHU, disclose it to any third party or use it for any purpose except as otherwise permitted under this Agreement. Licensee shall promptly cease using received Confidential Information upon termination of the Agreement or when the Licensee no longer needs Confidential Information in question for this Agreement’s execution, whichever is earlier.
- Trade Regulation and Restriction.The Software may be subject to applicable trade control regulation or restrictions imposed on technology and/or products by any country, organization or nation, including WAHU’scountry, the European Union and the United States of America, whose jurisdiction can be extended to or which are otherwise enforceable against WAHU or the Licensee. Both Parties shall comply with all applicable trade regulations in force from time to time, which may impact their performance under this Agreement. The Licensee acknowledges that Software and the license under this Agreement may not be imported or exported, re-exported, transshipped, diverted or transferred, directly or indirectly, contrary to such regulation or restrictions.
- Miscellaneous. Assignment. This Agreement or any part thereof shall not be assigned without a written agreement of WAHU. Entire agreement. The provisions of this Agreement constitute the entire and final agreement and understanding between WAHU and the Licensee with respect to the Software and license herein. Amendment. This Agreement may not be modified except by virtue of separate document in writing attached herein and signed by authorized representatives of both Parties. Waiver. A waiver by either Party of its rights hereunder shall not be binding, unless contained in a written document signed by an authorized representative of Party explicitly waiving its rights. Except as otherwise stated herein, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from or in connection with this Agreement shall be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. A waiver of any term, condition, right or remedy herein, when duly made by a Party, shall be valid only in the instance for which it is provided and explicitly referred to, and shall not be deemed a continuing waiver of said provision, nor shall it be construed as a waiver of any other term, condition, right or remedy hereof. Severability. If any provision of this Agreement is declared by any judicial or other competent authority to be illegal, void or otherwise unenforceable, the remaining provisions of this Agreement shall remain in full force and valid.
- Language. This Agreement is initially prepared, negotiated and agreed in English language. Shall this Agreement or any part hereof be translated into any other language, in case of any discrepancy between the English language version and translation, the English version shall prevail. No consortium or partnership. Nothing herein shall be deemed to constitute a partnership between Parties, nor constitute either Party the agent of the other Party for any purpose.
- Governing Law and Jurisdiction.This Agreement shall be governed by and construed in accordance with the laws of the state of Italy, without regard to its conflicts of laws principles, and independent of where a suit or action hereunder may be filed. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Agreement or to Software. Any dispute controversy, claim or dispute (including the validity of this clause 15) between WAHU and the Licensee hereto arising out of or in connection with this Agreement shall be finally and exclusively settled by the competent court in Milan, Italy.