1. APPLICABILITY

1.1. These Terms and Conditions apply to all sales of products, software and services by Mediability Denmark A/S (“Mediability”). Unless otherwise agreed in writing, or expressed in writing by Mediability, all quotations executed by Mediability shall be subject to these Terms and Conditions. 

1.2. Any purchase or use of any Mediability products, software or services constitutes and shall be deemed as acceptance of these Terms and Conditions.  

2. ORDERS

2.1 Customers may place orders with Mediability pursuant to Mediability’s standard order procedures and, where applicable, based on a quotation executed by Mediability. All orders made by customers shall be deemed as final when received by Mediability.         

2.2. Mediability shall be free at any time prior to delivery to change or make alterations to Mediability products that (i) do not change form, fit or function of the product, or (ii) are deemed by Mediability as necessary to comply with specifications, changed safety standards and/or governmental regulations (collectively, “Alterations”). The customer acknowledges and accepts that Alterations may cause increases in the sales price for Mediability products, and hereby accepts to be bound by such increase effective upon the implementation of any Alterations. Mediability shall provide written notice of any such increases to the customer.

3. PRICES AND TERMS OF PAYMENT

3.1. Applicable prices for Mediability products, software and services shall be as stated in Mediability’s order confirmation. In the absence of such order confirmation, prices shall be as stated in a signed quotation from Mediability in force at the time of the order. Prices are excluding VAT and freight costs, which shall be payable by the customer.     

3.2. Mediability shall render its invoice upon shipment of the Mediability products. For online purchases the terms and conditions of Mediability’s payment provider shall apply and prevail over these Terms and Conditions in case of any discrepancy. Unless Mediability has offered credit to customer, the full price for the order shall be paid to Mediability within 10 days of the date of the invoice, unless stated otherwise on the invoice. The amount of credit and terms of payment may be changed and credit may be withdrawn by Mediability at any time at its own sole discretion. Absent full and due payment from customer, Mediability has the right to charge interest on overdue, as well as any reminder or collection charges and expenses, as allowed by applicable law. 

4. DELIVERY AND TITLE

4.1. Unless otherwise agreed in writing by Mediability, all physical deliveries of Mediability products shall be Ex Works Mediability’s facility (Incoterms 2000). The customer shall reimburse Mediability all incurred costs of insurance and transportation of shipments and shall further be solely responsible for all import duties, taxes and any other expenses incurred. Mediability reserves the right to adopt an equitable plan of allocation and to adjust delivery schedules accordingly in the event of shortages. 

4.2. Until full payment of the applicable purchase price with applicable interests has been received by Mediability, Mediability shall have security for unpaid purchase in the Mediability products.      

4.3. All references to the “sale” of Mediability products shall be construed as meaning the sale of the physical units thereof only. Where applicable, all intellectual property rights in and related to any Mediability products shall remain the full, sole and exclusive property of Mediability.      

4.4. The customer shall at its own cost comply with all applicable export, import, or other relevant laws of any applicable jurisdiction.       

4.5 Upon receipt of Mediability products and/or services, the customer shall immediately inspect the received goods and/or services, and any objections that the customer should have with respect to such goods or services shall immediately be made in writing to Mediability, and at the latest within 14 days of receipt of goods and/or services.      

5. DEFECTS IN PRODUCTS

5.1. If a delivered product has a defect that Mediability is responsible for, Mediability has the right, at its own discretional choice, to (i) remedy the defect by repair, (ii) redeliver the product or (iii) refund the purchase price of the product.      

5.2. Mediability reserves the right to refer the customer directly to the respective manufacturer or to the service workshop referred to by the manufacturer in order to remedy the defect. 

6. SPECIAL TERMS FOR SOFTWARE

6.1. All third party-developed software sold by Mediability is copyright-protected work from the respective manufacturer or licensor (hereinafter “Third Party Provider”). Upon the purchase of a right to use and/or license to software from a Third Party Provider, the terms of the Third Party Provider, which may be sent to the customer by Mediability, or otherwise enclosed and/or embedded in the software, shall apply to the purchase of the right to use and/or license to the software, and shall prevail over these Terms and Conditions in case of any discrepancies between them. The purchase of any such software sold by Mediability constitutes and shall be construed as acceptance of such Third Party Provider terms.       

6.2. Mediability shall under no circumstances be liable for the software sold from a Third Party Provider, hereunder, but not limited to, excluding any liability for the performance, fitness of purpose or the non-infringing nature of the software. Mediability accepts no responsibility for the availability of the software, where applicable, and shall under no circumstances be liable for non-availability or other failures to perform by the Third Party Provider of the software for any reason, hereunder, but not limited to, the unavailability of software sold “as a service” provided by Third Party Providers and sold by Mediability.         

6.3. Notwithstanding paragraph 6.1., all software developed by Mediability or its affiliates sold and/or licensed by Mediability shall be subject to Fonn Group General Terms and Conditions, available at https://fonngroup.com/fonn-group-general-terms-and-conditions/. For the purposes of this paragraph “affiliates” shall mean any entity that directly, or indirectly controls, or is controlled by, or is under common control with Mediability. “Control” shall for the purposes of this definition mean direct, or indirect ownership, or control of more than 50% or more of the voting shares of the subject entity. 

7. WARRANTY; DISCLAIMERS

7.1. All Mediability products, software and services are provided “As-Is”. Except as otherwise expressly set out herein, Mediability disclaims all warranties of any kind, whether express, implied or statutory, including without limitation regarding merchantability, fitness for a particular purpose and non-infringement. Except as expressly provided herein, Mediability does not warrant that Mediability products or services will meet the customer’s requirements or that any defects will be corrected.  

7.2. Where Mediability is not the original manufacturer of a Mediability product, Mediability will pass through to customer warranties of the original manufacturer, only to the extent it is permitted and authorized to do so.

8. LIMITATION OF LIABILITY 

8.1. Mediability shall under no circumstances be liable for any special, indirect or consequential damages of any kind, or other similar damages including, but not limited to loss of profits, costs for substitute goods, or loss of data.

8.2. Mediability’s liability for breach of, or arising out of these terms and conditions or any agreement based thereon shall in any case be limited to the refund of the purchase price for the Mediability product purchased and to which the liability is related. 

9. CONFIDENTIALITY AND COMMUNICATIONS

9.1. The customer shall hold in strict confidence all information that is designated as confidential by Mediability or its suppliers, or that should reasonably be considered to be of confidential or proprietary nature (“Confidential Information”), and shall use at least the same degree of care and diligence that the customer applies with respect to its own confidential information, but never less than what is common and reasonable, in guarding Confidential Information from unauthorized disclosure. The customer may not disclose Confidential Information to its own personnel except to those of its employees who have a need to know the Confidential Information and who are subject to written confidentiality obligations no less restrictive than those set forth herein. Notwithstanding the above, information shall not be considered as confidential if it lawfully is in or enters the public domain through no act of the customer. The obligations of this Article shall survive any termination or expiration of these Terms and Conditions and any agreement based thereon.       

9.2. The customer hereby approves Mediability’s use of the customer’s logo in marketing and allows Mediability to publish non-confidential parts of the agreement. Non-confidential parts of the agreement shall mean the minimum amount of information needed to inform the market of the deal; e.g. the customer’s name, the date of deal, and which product(s), software and/or services the customer has purchased.      

9.3. The customer shall not prepare photographs, articles, press releases or speeches about the existence or scope of, or work to be performed under the agreement, or any details about Mediability’s facilities or business plans without prior written consent from Mediability. 

10. GOVERNING LAW AND JURISDICTION

10.1. These Terms and Conditions and any agreement based thereon shall be governed by and construed in accordance with the laws of Denmark, and the competent courts of Copenhagen, Denmark shall have exclusive jurisdiction over the parties with regards to these Terms and Conditions and any agreement based thereon.

11. TERMINATION

11.1. Mediability may terminate these Terms and Conditions and any agreement based thereon upon written notice if the customer materially breaches any obligation hereunder and the customer fails to remedy such breach within 30 days after receiving notice thereof from Mediability. If such default is remedied to Mediability’s satisfaction during such 30 day notice period and a second default occurs within one (1) year of the original default, the second default shall be deemed not to be curable and Mediability may immediately terminate these Terms and Conditions and any agreement based thereon upon written notice to the customer.

11.2. Mediability may terminate these Terms and Conditions and any agreement based thereon if (i) a receiver is appointed for customer or its property; (ii) the customer becomes insolvent or unable to pay its debts as they mature or makes an assignment for the benefit of its creditors; (iii) any voluntary proceedings are commenced by or for the customer under any bankruptcy, insolvency or debtor relief law; (iv) any proceedings are commenced against the customer under any bankruptcy, insolvency or debtor relief law and not dismissed within 30 days, or (v) customer is liquidated or dissolved. 

12. GENERAL 

12.1 Mediability shall not be liable for delays or non-fulfillment of its or its suppliers’ obligations under these Terms and Conditions or any agreement based thereon or for other losses arising hereunder due directly or indirectly to causes beyond Mediability’s or its suppliers’ reasonable control, including, but not limited to, acts of God, official export restrictions, labor disputes of any nature, supplier delay or other causes. 

12.2  These Terms and Conditions may be changed or amended by notice in writing, executed by Mediability. This document constitutes the entire and sole agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings, agreements, representations or warranties with respect to the subject matter hereof.          

12.3 Nothing contained in these Terms and Conditions shall be construed to create a relationship of principal and agent or of partnership or joint venture between the parties, nor shall either party hold itself out as such or as other representative of the other. Neither party shall have any right to bind the other party, to make any representations or warranties on its behalf, to receive notice or to perform any act on its behalf. 

12.4 The customer may not assign any rights or obligations under any order or agreement in whole or in part without prior written consent of Mediability. Mediability may assign its rights and/or obligations under an order or agreement in whole or in part to an affiliate or other collaborator of Mediability and shall in such case give written notice to the customer.         

12.5 If any provision, provisions or any portions of any provisions, of these Terms and Conditions or any agreement based thereon shall be held to be invalid, illegal or unenforceable, the remaining provisions or portions of any provisions shall be valid and enforceable to the fullest extent permissible by law.             

12.6 All notices or written communications shall be deemed to be delivered to the customer (i) two days after the date of posting, addressed to the customer at the last address of the customer known to Mediability, or (ii) for email, upon the sending of such email through Mediability’s email provider.