General Terms and Conditions of PODOBLOCK BV
- A. GENERAL
1 These general terms and conditions shall apply to any and all offers extended by PODOBLOCK BV, to be referred to hereinafter as PODOBLOCK BV, as well as to any and all agreements entered into by PODOBLOCK BV. Any reference by buyers to their own terms and conditions for procurement, tendering or other conditions shall not be accepted by PODOBLOCK BV.
2. All offers, stock lists and price lists cited by PODOBLOCK BV shall be non- binding in all cases. PODOBLOCK BV shall at all times be entitled to refuse an order or to impose additional conditions on a delivery. Agreements shall not enter into force until they have been confirmed by PODOBLOCK BV in writing. If the accuracy of a written confirmation has not been contested within 3 working days, the relevant agreement shall come into being as per the confirmation. In these cases, the buyer shall not be entitled to invoke the inaccuracy of his order.
3. Where these terms and conditions refer to a written confirmation, this shall be understood to include a confirmation by email, sent to the email address given by the buyer, in case of an order placed through electronic means, such as orders through the web site or by email.
- B. PRICES
1. All prices quoted by PODOBLOCK BV shall be expressed in euros, unless expressly agreed otherwise, and shall be exclusive of sales tax and/or any other taxes and levies imposed by the government, such as import duties.
2. After confirmation of the agreement, or after having extended a binding offer, PODOBLOCK BV shall still be entitled to adjust its prices and to make changes in the (production) costs, material prices, import duties, taxes, exchange rates of foreign currencies, transport costs etc., if such adjustments and changes are due to circumstances beyond the control of PODOBLOCK BV, such as a shortage or non-performance by a supplier of PODOBLOCK BV. In these cases, the buyer shall be entitled to withdraw from the agreement within two days after notification of such price increase.
- C. DELIVERY PERIOD
1. The delivery period shall commence from the time when PODOBLOCK BV has accepted the order in writing, when all the required documents and details are in the possession of PODOBLOCK BV, and in addition any agreed instalments have been paid.
2. Any overrun of a delivery period for any reason whatsoever shall never entitle a buyer to receive compensation, to dissolve the agreement or to suspend performance of any obligation vis- à-vis PODOBLOCK BV.
3. Any penalty agreed in writing shall not be due if the overrun of the delivery period is caused by force majeure as defined in Section I, Force majeure.
- D. DELIVERY AND TRANSPORT
1. Deliveries within the European Union shall take place "Delivery Duty Unpaid" (as defined in the Incoterms 2000 adopted by the ICC); all other deliveries take shall place "Ex Works" (as defined in the Incoterms 2000 adopted by the ICC), to the place as specified in the agreement, unless expressly agreed otherwise. The interpretation of the conditions of delivery shall be in accordance with the aforementioned Incoterms.
2. Immediately upon delivery, any and all risks with respect to damage occurring to or caused by the goods shall pass to the buyer.
3. If the delivery is on a condition other than DDU, the transport of the goods shall take place at the risk and expense of the buyer, unless expressly agreed otherwise in writing.
4. If the buyer has not specified or contracted a carrier, PODOBLOCK BV shall choose a carrier to the best of its ability, but without any liability on the part of PODOBLOCK BV.
5. In no event may any goods delivered by PODOBLOCK BV be returned without the prior written approval of PODOBLOCK BV.
- E. RESPONSIBILITY AND OWNERSHIP OF DESIGNS
1. PODOBLOCK BV does not accept liability for any design prepared by itself or by any third party for the applicant or buyer, nor for any materials specification included with such design by a third party.
2. Any and all offers and quotations issued by PODOBLOCK BV, as well as any drawings, moulds, software, calculations, descriptions, models, tools etc. produced or provided by us, shall continue to be the property of PODOBLOCK BV whether or not any fees have been charged for them, unless agreed otherwise in writing. The information contained in any of the above items, or the information which forms the basis for the method of production or construction, the products, the moulds etc. shall be reserved exclusively by PODOBLOCK BV, even if fees have been charged for them, unless agreed otherwise in writing. The buyer undertakes to refrain from photocopying the aforementioned information, showing or disclosing it to third parties or using it without the written consent of PODOBLOCK BV, except in performance of the agreement.
3. PODOBLOCK BV does not guarantee in any form whatsoever that the goods delivered to the buyer do not infringe any written or implied intellectual and/or industrial property right of a third party.
- F. WARRANTY PROVISIONS
1. Any warranty given by PODOBLOCK BV for faults in materials or manufacturing shall be limited to either replacement of the relevant goods by PODOBLOCK BV free of charge, or a refund of the price paid by the buyer, at the discretion of PODOBLOCK BV. In the latter case, the delivered goods shall be returned.
2. With respect to materials and/or products acquired by PODOBLOCK BV from third parties, PODOBLOCK BV gives no warranty except to the extent of any warranty it may have been given by its suppliers. The conditions of the relevant warranties will be forwarded to the buyer upon request.
3. The buyer shall not be entitled to derive any claims from a warranty given by PODOBLOCK BV, beyond those referred to in paragraphs 1 and 2 of this Article, notably the right to claim compensation for damages incurred through the use of the goods.
4. If the buyer fails to fulfil any of his obligations as arising from the agreement concluded with PODOBLOCK BV or from any associated agreement, or fails to fulfil them correctly and in time, PODOBLOCK BV shall not be bound to the warranty provisions in any way.
- G. CLAIMS
1. The buyer shall inspect the goods carefully, or arrange for their careful inspection, immediately upon arrival at their destination or after receipt by himself or a third party acting on his behalf. Any transport damages and other visible shortcomings shall be recorded by the buyer on the shipping documents without delay, failing which PODOBLOCK BV shall not be liable for any damages. Any other claims for defects in goods shall be submitted to PODOBLOCK BV in writing no later than 7 days from the arrival of the goods or their inspection. Any right to claim compensation and/or warranty claim shall lapse if the claim is not submitted within the aforementioned period.
- H. LIABILITY
1. PODOBLOCK BV shall in no event be liable for any indirect damages incurred by the buyer or any third party, including any consequential damage, immaterial damage, loss of profits or environmental damage or pure economic loss.
2. The remaining liability of PODOBLOCK BV shall in each case be limited to the amount of the invoice for the relevant delivered goods and/or services, with the exception of the liabilities arising from the imperative provisions of Section 6.3.3, Dutch Civil Code (product liability).
3. PODOBLOCK BV shall not be liable for any damages occurring as a consequence of instructions as to design, conception etc. which are or have been given by the buyer. Accordingly, the buyer is fully responsible for the accuracy of the information provided by him.
4. Except in case of gross negligence or wilful misconduct of the board of directors or management executives, the buyer shall indemnify PODOBLOCK BV against any and all claims from third parties on any grounds whatsoever.
5. Any claim for compensation or remedy shall lapse if such claim is not submitted within the claiming or warranty period.
6. With respect to the foregoing Articles, PODOBLOCK BV shall be free to choose whether we will either reimburse the buyer or replace the purchased goods.
- I. FORCE MAJEURE
1. In case of force majeure, PODOBLOCK BV shall be entitled - at our own discretion - to either suspend performance of the agreement or to consider the agreement to be terminated, without any judicial intervention and in either case without PODOBLOCK BV being required to pay any compensation.
2. Force majeure for PODOBLOCK BV in the performance of its obligations shall be deemed to include any external cause which cannot be attributed to PODOBLOCK BV, and which persistently or temporarily either prevents the performance of the agreement entirely or impedes or hampers it to such an extent that such performance cannot be reasonably expected of PODOBLOCK BV.
3. Force majeure shall be understood to include the following: war, revolution, public unrest, flooding, fire, strike, exclusion, sabotage, terrorism, serious increases in import duties, tariffs and/or taxes or other government measures which seriously affect the operations of PODOBLOCK BV, default of supply companies, devaluation and inflation or any other circumstance which prevents or seriously hampers the normal conduct of its business.
- J. PAYMENT AND SECURITY
1. Any and all payments shall be made within payment term as specified in the order confirmation and/or invoice, either in cash at the offices of PODOBLOCK BV in Midlaren or through bank transfer to one of the accounts listed on the invoices.
2. All payments shall be effected in the currency of the respective invoice.
3. Payment may only be effected by a bill of exchange or cheque if such manner of payment has been expressly agreed to in writing. Any costs connected with such manner of payment shall be borne entirely by the buyer.
4. The time of payment of an amount shall in each case be the time when the amount has been received in cash at the offices of PODOBLOCK BV in Midlaren or credited to any of its bank accounts.
5. If an amount due is not paid by the deadline, the buyer shall be required to pay an interest of 1.5 percent per month to PODOBLOCK BV, from such deadline until the date of final payment.
6. The buyer shall provide security for a proper performance of his obligations vis-à-vis PODOBLOCK BV if and when PODOBLOCK BV so desires. The security referred to here will have to be to the satisfaction of PODOBLOCK BV. If the buyer fails to comply with the above, PODOBLOCK BV shall not be required to perform or continue to perform its obligations pursuant to any outstanding agreements, without prejudice to the right of PODOBLOCK BV to claim compensation.
7. If any third party wishes to exercise any rights on the goods while they are still the property of PODOBLOCK BV, the buyer shall inform us accordingly without delay, both orally and in writing.
8. Any non-payment, moratorium, bankruptcy, liquidation of assets of the buyer and/or seizure under the buyer shall entitle PODOBLOCK BV to immediately suspend or terminate the relevant agreement, as well as all other agreements entered into between the parties whose performance has not been completed, either in whole or in part and without any judicial intervention being required. In this case, the buyer shall no longer have any rights under the present agreement, whereas PODOBLOCK BV shall still be entitled to claim immediate payment of goods already delivered.
9. Any and all costs incurred by PODOBLOCK BV for the collection of any amounts due to it, either in court or outside of court, shall be borne by the buyer. In case of a dispute with respect to the obligation to pay any invoiced amount, or with respect to quality, the buyer shall when requested by PODOBLOCK BV, deposit the amount payable in the name of PODOBLOCK BV at a bank designated by the latter, while reserving all his rights.
10. Without the explicit written consent of PODOBLOCK BV, the buyer shall not be entitled to net any payment obligation vis-à-vis PODOBLOCK BV with any claim which the buyer may have on PODOBLOCK BV on any grounds whatsoever.
- K. RESERVATION OF OWNERSHIP
1. PODOBLOCK BV shall retain ownership of all goods (such as materials, drawings, parts etc.), for as long as the buyer has not paid the consideration for the goods delivered or still to be delivered by PODOBLOCK BV, including any amounts which the buyer shall be due for reason of any default in the performance of his obligations.
2. The buyer shall not be entitled to transfer the products, to rent them to a third party, to allow a third party to use them, to pledge them or to otherwise encumber them for the benefit of a third party, before the ownership of the goods has passed to the buyer. In case of a violation of this prohibition, the purchase price shall be immediately payable in full, regardless of the conditions of payment. PODOBLOCK BV is irrevocably authorized by the buyer to recover any goods delivered under reservation of ownership without any judicial intervention, summons or formal notice of default being required. Such recovery by PODOBLOCK BV shall not be deemed to constitute termination of the agreement, unless PODOBLOCK BV expressly informs the buyer of the contrary.
3. The buyer undertakes to store any delivered and/or supplied goods separately and to mark them clearly as the property by PODOBLOCK BV; if the buyer fails to comply with this obligation, any goods of the type provided or delivered by PODOBLOCK BV found present at the buyer's premises shall be presumed to belong to PODOBLOCK BV. The buyer shall further be required to insure the goods against fire, explosion and water damage, as well as against theft for the duration of the reservation of ownership, and to present the relevant insurance policies to PODOBLOCK BV for inspection upon first request. Any and all claims which the buyer may have on the company insuring the goods pursuant to the aforementioned insurance policies shall be transferred to PODOBLOCK BV whenever PODOBLOCK BV so desires.
- L. APPLICABLE LAW AND DISPUTES
1. These terms and conditions as well as all agreements between the parties, shall be subject to the laws of the Netherlands. Any applicability of the Vienna Sales Convention or of foreign legislation is expressly excluded.
2. Any and all disputes arising from the agreement(s) or these general terms and conditions shall be referred to the competent court in the District of Groningen (the Netherlands).
3. These general terms and conditions have been filed on 24-11-2011 at the court registry of the Court at Groningen with number 11/4.