GENERAL TERMS AND CONDITIONS OF SALE OF PRODALIM B.V., established in Amsterdam, the Netherlands, registered with the Chamber of Commerce “Amsterdam” under nr. 35025582, hereinafter referred to as “Prodalim“.
1.1 All offers from and all orders to Prodalim and all agreements, whether orally or in writing, and including any amendments thereto (collectively “Agreements“) between Prodalim and a customer of Prodalim (hereinafter: the “Customer“) for the sale and delivery of products are subject to these general terms and conditions which are an integral part of the Agreement. Agreements are not binding on Prodalim until the receipt by the Customer of a confirmation by Prodalim which is signed by Prodalim.
1.2 The Customer may, in a respective Agreement, invoke provisions that deviate from these general terms and conditions herein or that waive or that otherwise change any of the provisions in these general terms and conditions only if and to the extent that Prodalim has accepted such provisions, deviation, waiver, change or contradiction in writing.
1.3 The Customer who has entered into an Agreement with Prodalim upon which these general terms and conditions are applicable, consents to the applicability of these general terms and conditions to Agreements concluded with Prodalim hereafter.
1.4 If for any reason any provision in these general terms and conditions is held to be invalid, the remainder shall remain in full force and effect; an invalid provision shall be deemed to be replaced by a valid provision which most closely achieves the economic purpose of the invalid provision as far as possible.
2.1 Unless expressly indicated or agreed otherwise, the prices quoted or agreed upon by Prodalim shall be net prices, exclusive of VAT and exclusive of any import or export duties, costs of insurance, adequate packaging, unloading, inspections, tests, certifications and the like, and prices are only valid for delivery Ex Works at the location of Prodalim. The prices are subject to adjustment for any changes to the products or the specifications on which the parties agreed or which are required by applicable regulations or standards. To the extent that any particular Agreement provides that the prices thereunder are inclusive of import duties, then (i) the rate of such import duties shall be deemed to reflect the rate of import duties on the date on which such particular Agreement was signed by Prodalim and the respective Customer; and (ii) to the extent that, at any time during the term of the particular Agreement, the rate of such import duties will be increased, then the prices under such particular Agreement shall be adjusted in accordance with such updated import duties.
3. DELIVERY AND DELIVERY TIME
3.1 Prodalim shall deliver the products to the location designated in the Agreement or if the Agreement does not contain such a location, to the location designated by the Customer in writing (hereinafter: the “Location”). Delivery takes place Ex Works the moment on which Prodalim or a third party on behalf of Prodalim has the products ready to be loaded on the vehicle used for transport to the Location (either by Prodalim itself, by a transporter engaged by Prodalim, by a transporter engaged by the Customer or by the Customer itself). The costs of transport will be paid solely by the Customer, even if Prodalim organizes the transport. In case of a difference between these general terms and conditions and the incoterms, these general terms and conditions shall prevail.
3.2 A failure to make a timely delivery shall in no event entitle the Customer to additional or substitute compensation or to non-compliance with any of its own obligations arising from the Agreement. However, if the failure to provide a timely delivery solely results from a circumstance that can be reasonably attributed to Prodalim and subsequently, if and insofar as Prodalim still fails to deliver within a reasonable period of time after the Customer has informed Prodalim thereof in writing, the Customer shall be entitled to rescind the Agreement by means of a written statement.
3.3 Prodalim has the right to make partial deliveries.
4. RISK AND TRANSFER OF OWNERSHIP
4.1 After the products have been delivered as per Article 3.1, the products are for the Customer’s sole expense and risk.
4.2 If the Customer is not able to timely pick-up the products in accordance with Article 3.1, for whatever reason, such products are for the Customer’s sole expense and risk as of the moment that such products were ready for transport or as of the moment the Customer was informed that the products were ready to be picked-up, whichever is earlier. As of that moment, loading, dispatching or transport, unloading and insuring such products shall be effected for the sole expense and risk of the Customer.
4.3 The industrial or intellectual property rights to or in connection with the delivered products or any materials delivered in connection therewith, including without limitation any product specification, formulation produced or supplied, shall remain at all times exclusively with Prodalim or with third party title owners and shall in no event be transferred to the Customer.
5. RETENTION OF TITLE
5.1 all products sold by Prodalim shall remain the sole and exclusive property of Prodalim until the Customer has paid in full all prices and other sums that it is owed to Prodalim for the products or otherwise in connection with the underlying Agreement and/or in connection with prior or subsequent Agreements of the same nature, including, without limitation, payment obligations, damages, costs, charges, expenses and interest. If applicable laws do not allow the retention of title, but allow Prodalim to reserve other security rights, Prodalim may exercise these rights. The Customer has no right of retention in respect of those products.
5.2 If there are products that are still subject to the retention of title as set forth under Article 5.1, the Customer may only sell such products to third parties when acting in the ordinary course of its business.
5.3 The Customer will store products that have not yet been fully paid for separately and in such a way that they are recognizable as Prodalim property.
5.4 The Customer grants Prodalim an irrevocable authority to: (i) take such measures which are necessary to maintain the property rights to the products by Prodalim, including, without limitation, to take actions in the name and on behalf of the Customer, and (ii) to enter any premises controlled by the Customer to re-take possession of the products which are still subject to the retention of title.
|6. FORCE MAJEURE
6.1 Prodalim shall be entitled to invoke force majeure if the implementation of the Agreement is, in whole or in part, temporarily or not, prevented or impeded by circumstances reasonably out of its control, including (but not limited to): (a) acts of war or the commencement or escalation of hostilities, (b) site or building blockades, (c) fire, (d) strikes, (e) faults on the part of suppliers, (f) stock shortages, (g) price increases by suppliers, (h) delayed delivery of parts, products or services by third parties to Prodalim, (i) accidents and (j) interruptions of business operations.
7. LIABILITY AND INDEMNIFICATION
7.1 The Customer shall examine the products immediately on receipt. Any obvious defects to the delivery shall immediately be reported back to the carrier on the bill of delivery. Any hidden defect shall be reported within 5 days of receiving the products, by e-mail, fax and/or in writing, giving full details of the alleged complaint. If the Customer does not fulfil these obligations, any damages which may result from such defects shall be borne by the Customer. After said timeframes, as applicable, any defects may no longer be asserted.
7.2 The liability of Prodalim in connection with the products or any defects of the products that it has delivered is limited to (at Prodalim’s discretion) replacement of or crediting the defective products.
7.3 Prodalim is and shall not be liable for any damages (such as but not limited to substitute, additional, consequential, direct damages or loss of profits) other than as set out in Article 7.2.
7.4 The limitation of liability shall not apply if and insofar as the damage suffered was inflicted intentionally by or was the result of gross negligence of Prodalim itself (and not any of its employees except for any directors of Prodalim).
7.5 In all cases in which Prodalim is obligated to pay compensation for damage, then the total sum of such compensation to be paid shall in no event exceed, at Prodalim’s discretion, either the respective invoice value of the products in connection with which the damage was caused or, if the damage is covered by an insurance of Prodalim, the amount which is actually paid in the matter by the insurer.
7.6 Conditions that limit, exclude or establish liability, or that can be invoked against Prodalim by suppliers or subcontractors of Prodalim in connection with the products delivered, can also be invoked by Prodalim against the Customer. With respect to the products to be delivered, the Customer shall strictly observe national and international governmental export, import and user restrictions. The Customer shall and will hold Prodalim harmless with respect to any damage suffered by Prodalim as a result of any violation of these restrictions.
7.7 Customer shall and will hold Prodalim harmless against any claims of third parties related to the performance of the Agreement.
8. PAYMENT AND SECURITY
8.1 Unless expressly agreed otherwise in writing in the Agreement, payment shall be made in the currency and within the payment term as specified on the respective invoice. Prodalim has the right to require payment in advance or demanding a security to be provided by the Customer to Prodalim, at Prodalim’s discretion.
8.2 The Customer relinquishes any right to set-off amounts. Claims do not suspend the obligations of the Customer (including but not limited to the payment obligations).
8.3 If the Customer fails to pay any amount due in a timely manner, the Customer shall be in default without the need of a prior notice of default by Prodalim. As from the day following the payment due date, overdue payment interest at 1% of the outstanding amount per month shall be due for any part of a month during which the default continues.
9.1 In the event the Customer (i) fails to partially or entirely perform one or more of its obligations, or fails to do so in a timely or proper manner; or (ii) is declared bankrupt; or (iii) requests a permanent or temporary suspension of payments; or (iv) proceeds to liquidate its company (or similar event), as well as if its assets are seized in part or in their entirety, then Prodalim shall be entitled to suspend the implementation of the Agreement or to rescind the Agreement with immediate effect, in part or in its entirety, by means of a written statement without the need of a prior notice of default by Prodalim, at its sole discretion, and always without prejudice to any other rights to which it is entitled to compensation of costs, damages, expenses and interest etc’.
9.2 The Customer shall only be entitled to rescind the Agreement by means of a written statement in the events described in Article 3.2 and 6.2 and in any event only after the full payment to Prodalim of all outstanding amounts at that time, including, without limitation, any payment obligations, damages, costs, charges, expenses and interest, whether or not due.
9.3 Expiration, termination or rescission of the Agreement for whatever reason shall not prejudice the provisions of these general terms and conditions, which, by their nature, must be deemed to survive such expiration, termination or rescission, including but not limited to Article 7 and 10.
10. DISPUTES AND APPLICABLE LAW
10.1 All disputes between the parties relating to the Agreement, further contracts resulting therefrom or in connection therewith shall: (a) be exclusively submitted to the competent court in Amsterdam for Customers residing within the European Union, or (b) for any other Customers – be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute by one arbitrator, in the English language with the arbitration seat in Amsterdam.
10.2 All agreements between Prodalim and the Customer are subject to Dutch law. The stipulations specified in the Convention of International Sale of Goods of 11 April 1980 (in Dutch: “Weens Koopverdrag”) are not applicable.