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1. General applicability
1.1 These terms and conditions apply to every quotation and every contract between Palmedic and a Buyer (Buyer), except to the extent otherwise agreed in a written agreement fully executed by both parties.
1.2 Palmedic objects to and shall not be bound by any additions, exceptions, or changes to these General Terms and Conditions of Sale and Supply, whether contained in any printed form of the Buyer or elsewhere, unless such additions, exceptions, or changes are agreed to by Palmedic in writing. To the extent there are any inconsistencies between such additions, exceptions, or changes and these General Terms and Conditions of Sale and Supply, these General Terms and Conditions of Sale and Supply shall apply.
2. Establishment of the contract
2.1 All selling prices quoted from Palmedic are without any obligation, unless there is a written statement from Palmedic to the contrary. Palmedic will not be bound until Palmedic has accepted or confirmed the order in writing or has executed the order without prior written acceptance or confirmation.
3. Pricing & Shipment
3.1 The prices stated in a price list, published by Palmedic in some other way or stated in any contract signed or agreed to by Palmedic may be changed by Palmedic at any time without prior notification. If the price increase is more than 5%, the Buyer is entitled to terminate the contract by means of written notification immediately after notification of the price increase. Unless expressly stated otherwise, these prices are net, in EURO currency, exclusive of any value added tax and ex works Palmedic's premises (Incoterms 2000) without prejudice to Palmedic's right to retention of title as described in article 4 below (ex works means, among other things, that goods travel at the Buyer's risk and the means of transport will be decided and paid for by the Buyer). Unless otherwise expressly agreed to by Palmedic in writing, invoicing will be based on prices that are applicable on the date of shipment. Palmedic is entitled to charge handling costs as published in Palmedic's price list, or made known by Palmedic in any other way.
3.2 Palmedic will pack the goods in a manner customary in the trade.
3.3 Time of shipment is not of the essence (this means that an agreed shipment time is not a deadline, unless expressly agreed to by Palmedic in writing otherwise).
3.4 The Buyer has a duty to take possession of the purchased goods at the moment when they are made available to the Buyer. If the Buyer refuses to take possession or is negligent in providing the information or instructions necessary for shipment, the goods will be stored at the Buyer's expense and risk. In this case the Buyer will be liable for all additional costs, including but not limited to storage costs.
3.5 Palmedic reserves the right, in the event of doubt about the creditworthiness of the Buyer or for whatever other commercial reason, to require security to be provided for any or all deliveries, or if the required security is not provided to Palmedic's satisfaction, to suspend or refuse deliveries, or to send the goods on the basis of cash on delivery.
4. Retention of title
4.1 Palmedic retains title in all delivered goods, until all sums and other obligations with respect to these General Terms and Conditions of Sale and Supply and all orders or contracts to which Palmedic and Buyer are party and their performance, including any additional costs as referred to in article 3.4, has or have been paid in full.
4.2 Goods supplied by Palmedic that are subject to Palmedic's retention of title interest under article 4.1 may not be pledged by the Buyer until Palmedic's claims are satisfied.
4.3 If the Buyer fails to fulfil the Buyer's commitments or if there is a well-founded concern that the Buyer will fail to fulfil the Buyer's commitments, by virtue of article 4.1 Palmedic is entitled to remove or have removed delivered goods that are subject to Palmedic's retention of title from the Buyer or the Buyer's agents. The Buyer has a duty to co-operate. In the event the Buyer fails to co-operate, the Buyer shall be liable to Palmedic for liquidated damages of 3% of the amount that the Buyer owes for each day that such amount owes.
4.4 The Buyer shall inform Palmedic immediately if third parties claim or wish to enforce any right to goods that are subject to Palmedic's retention of title in article 4.1.
4.5 The Buyer shall: " insure the goods that are subject to Palmedic's retention of title in article 4.1 against fire, explosion, water damage and theft; " pledge to Palmedic all claims by the Buyer on insurers with regard to goods that are subject to Palmedic's retention of title in article 4.1; " pledge to Palmedic the claims which the Buyer obtains in respect of his customers when selling goods that are subject to Palmedic's retention of title in article 4.1; " where practicable, mark goods that are subject to Palmedic's retention of title in article 4.1 as the property of Palmedic; " co-operate in other ways in relation to all reasonable measures that Palmedic desires in order to protect its ownership rights in respect of goods that are subject to Palmedic's retention of title in article 4.1, which will not unreasonably obstruct the Buyer in the normal conduct of business.
5. Payment conditions
5.1 Payment must be made by means of prepayment unless otherwise agreed to by Palmedic in writing, in a manner directed by Palmedic. If Palmedic has agreed in writing to waive prepayment and payment is not made as provided in article 5.2, the Buyer will be in default if payment has not been made within 30 days after the invoice date; from the moment that the Buyer is in default he is liable to pay as liquidated damages interest on the amount due and payable at the rate of 18% or the highest rate allowed by law, if lower. 5.2 If Palmedic has agreed in writing that payment will be made by means of an irrevocable letter of credit (UCP 500), a first-class bank acceptable to Palmedic will confirm such letter, located in the country of Palmedic's domicile, or other country of Palmedic's choice, with terms acceptable to Palmedic. The Buyer will pay all costs of this letter of credit, including confirmation.
5.3 Payments made by the Buyer will be used first to pay any interest and costs incurred, second to pay the due and payable invoices that have been outstanding the longest, regardless of any instructions of the Buyer to the contrary.
5.4 If the Buyer is in default in the fulfilment of one or more of the Buyer's obligations, any reasonable costs incurred in obtaining payment will be borne by the Buyer. Such costs may include but are not limited to attorney fees, collection agency fees, judicial or administrative proceedings, etc.As a measure of liquidated damages, the Buyer is in any event liable, in relation to the amount still to be paid to Palmedic, for: " 15% of the first EUR 5,000; " 10% of the remainder up to EUR 50,000; " 5% of the amount above EUR 50,000; or the maximum liquidated damages allowed under the law, if lower. If Palmedic proves that it incurred higher costs and that these costs were reasonably necessary, they will also be charged to the Buyer.
6. Quality and samples
6.1 Palmedic undertakes to supply products that comply with the specifications in the contract of sale. In the absence of such specifications, Palmedic undertakes to supply products that meet standard requirements applicable to such products. 6.2 On request, Palmedic may supply samples/test specimens of its products. Samples remain the property of Palmedic at all times.
7. Force majeure
7.1 Palmedic shall not be held accountable for failure or delay of performance under this contract if it is due to force majeure or to any occurrence other than negligence on Palmedic's part.
7.2 Force majeure includes, but is not limited to, act of God, lightning, fire, storm, flood, earthquake, accumulation of snow or ice, lack of water arising from weather or environmental problems, strike, lockout or other industrial disturbance, act of the public enemy, war declared or undeclared, threat of war, terrorist act, blockade, revolution, riot, insurrection, civil commotion, public demonstration, sabotage, act of vandalism, prevention from or hindrance in obtaining materials, energy or other supplies in any way, explosion, directive or requirement of any government, or government agency or authority; provided, however, that lack of funds shall not be interpreted as a cause beyond the reasonable control of that party or as force majeure.
7.3 If the performance is delayed by force majeure for longer than one month, either of the parties is entitled to terminate the contract, without Palmedic being liable for any compensation for loss or damage, however it may be described, sustained by the Buyer or third parties.
7.4 If Palmedic has met a part of its obligations when force majeure commences, or can only fulfil part of its obligations, it is entitled to invoice separately for that which has been supplied or which can be supplied, and the Buyer is obliged to pay this invoice as if it were a separate contract. However, this does not apply if that which has been supplied or which can be supplied has no independent value.
8.1 The Buyer is not permitted to alter the goods supplied wholly or in part or to give or to affix on the goods another brand name or packaging without the express written permission of Palmedic.
8.2 Statements by or on behalf of Palmedic relating to quality, composition, handling/treatment in the broadest sense, application possibilities, properties, etc. of goods only apply as guarantees if they have been made in writing and expressly in the form of a guarantee.
8.3 The Buyer will make no claims or instructions for use, reuse or disposal, different from those provided by Palmedic. The Buyer has a duty to comply with the instructions relating to storage and handling/treatment of the goods supplied.
8.4 The Buyer has a duty to inspect the goods and the packaging upon arrival. The Buyer must bring defects in the goods and packaging that are apparent to the attention of Palmedic no later than 14 days after receipt of the goods. Defects, which are not found to exist until later upon use or consumption by the Buyer or by third parties, must be brought to the attention of Palmedic no later than 14 days after discovery of such defect. Palmedic's liability lapses if the Buyer does not comply with these stipulations and with the stipulation referred to in article 8.3. The Buyer has a duty to take all reasonable measures in order to limit the loss or damage. In particular, the Buyer will follow Palmedic's directions in relation to the goods and packaging.
8.5 The Buyer will not over-label without Palmedic's prior written consent. Palmedic must approve all marketing materials prepared by or on behalf of the Buyer for the products.
8.6 Palmedic is not liable for loss or damage resulting from delay, or loss or damage on account of late shipment except in the case of wilful misconduct or gross negligence. In the event of an alleged breach of this contract, Palmedic is limited at all times solely to pay compensation equal to the maximum net invoice value of the goods that are the subject matter of the alleged breach.
8.7 Palmedic warrants that it has clear title to the goods and that the goods shall be delivered free of liens and encumbrances. Palmedic warrants that any product it manufactures or has made according to its specifications will meet the claims set forth in its labelling and packaging requirements. Any product distributed by Palmedic is warranted by its manufacturer and not by Palmedic. Unless the product is used in accordance with the directions on its labelling, this warranty is void and of no effect. THERE ARE NO OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOLE OBLIGATION OF PALMEDIC AND THE BUYER'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY SHALL BE, AT THE OPTION OF PALMEDIC, TO REPAIR OR REPLACE THE PRODUCT. PALMEDIC SHALL NOT BE LIABLE FOR PROXIMATE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. WARRANTIES THAT ARE MORE SPECIFIC MAY ACCOMPANY INDIVIDUAL PRODUCTS.
8.8 The Buyer will indemnify Palmedic against any claims of third parties for which Palmedic is not expressly liable pursuant to these General Terms and Conditions of Sale and Supply.
8.9 The Buyer shall obtain and maintain comprehensive general liability insurance covering each occurrence of bodily injury and property damage in an amount not less than EUR 1 million (or such higher limits as Palmedic shall reasonably request) with endorsements for: 1:Products/completed operations; 2:Blanket contractual liability; 3:Vendor's liability. Buyer shall, on or before delivery of any product, furnish Palmedic a certificate of insurance issued by the insurer evidencing the above-required insurance and stating that the insurer shall give Palmedic written notice at least thirty (30) days prior to any cancellation, non-renewal or material change in coverage.
8.10 In the event that a recall of the goods is necessitated by any reason within the Buyer's control, the Buyer shall bear all costs and expenses of such recall, including, without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits, and other expenses incurred to meet obligations to third parties. In the event of a recall of the goods necessitated by a reason outside the Buyer's control, the Buyer shall be entitled to request from Palmedic either (i) replacement of the effected products, including transportation, or (ii) a credit for the effected goods already purchased. Buyer shall not commence any recalls of the goods without the prior written approval of Palmedic, which approval shall not be unreasonably withheld. In the event of a recall of any nature, the parties will cooperate fully with each other, including communications with any purchasers or users.
8.11 The goods may be returned at Palmedic's expense and risk only after express written permission has been obtained from Palmedic.
All information disclosed to Buyer in connection with this order is furnished as part of the consideration for Buyer's placement of this order. This information is to be treated as confidential or proprietary information of Palmedic that the Buyer will keep strictly confidential.
10. Termination of the contract.
Palmedic's claims against the Buyer are due and payable immediately in the following cases: " if the Buyer is declared bankrupt, his company is liquidated or if a moratorium has been applied for or granted; " if, after the contract has been entered into, Palmedic becomes aware of circumstances which give Palmedic good grounds to fear that the Buyer cannot fulfil his obligations; " if Palmedic has asked the Buyer upon entering into the contract to pay in advance or to provide security for the fulfilment of his obligation to pay and this payment is not made or the security is insufficient. Palmedic is entitled in such cases to suspend further performance of the contract, or to terminate the contract, all such without prejudice to Palmedic's right to claim compensation.
11. Applicable law / competent court.
These General Terms and Conditions of Sale and Supply and all orders or contracts to which Palmedic and Buyer are party and their performance shall be controlled and governed by the law of The Netherlands and the Buyer hereby submits to the exclusive jurisdiction of the courts of The Netherlands for purposes of resolving any dispute arising or relating to these General Terms and Conditions of Sale and Supply and any orders or contracts to which PalMedic and Buyer are party.
12. Convention on Contracts for the International Sale of Goods (CISG) 1980
The parties expressly agree that the 1980 Convention on Contracts for the International Sale of Goods (CISG) will apply to any shipments of products from Palmedic to the Buyer, except to the extent that the CISG contradicts or is inconsistent with any provision in these General Terms and Conditions of Sale and Supply, in which case the CISG shall not apply to the extent of any such contradiction or inconsistency.