Terms & Conditions of ProPV GmbH, domiciled in (12099) Berlin at Komturstrasse. 58-62 (referred to hereinafter as ‘ProPV’).
1.1 These terms & conditions of PROPV, together with the terms & conditions of PROPV’s supplier, which are attached as Annex 1 (referred to in conjunction as ‘the Terms & Conditions’) apply to all juristic relationships between PROPV and its counterparty (‘the Customer’), including any and all orders, order confirmations and offers.
1.2 Deviation from the Terms & Conditions is only permitted on a case-by-case basis and if agreed in writing.
1.3 If any particular clause in these Terms & Conditions cannot be invoked on the grounds that it presents a conflict with a statutory provision, that clause will be assigned a meaning that is as close as possible to the original while still allowing it to be invoked. The remaining clauses in the Terms & Conditions will retain their full effect.2 OFFERS/CONCLUSION OF AGREEMENTS
2.1 All offers issued by PROPV are subject to confirmation, unless explicitly agreed otherwise.
2.2 An agreement comes about between PROPV and the Customer when the Customer accepts PROPV’s Order Confirmation by signing it, or when the Customer acts in accordance with the Order Confirmation.
2.3 Together with the Terms & Conditions, the Order Confirmation comprises the full agreement between the parties (‘the Agreement’). The Customer’s terms & conditions do not apply. Any subsequent references to those terms and conditions have no effect. The Agreement may only be amended in writing, based on a written document that is duly signed by both parties.
2.4 In the event of any contradiction between the underlying documents comprising the Agreement, the following order of importance applies, for which purpose the document listed first has precedence over any document listed thereafter:a. the Order Confirmation;b. the text of these Terms & Conditions;3 PRICES
3.1 All prices are specified in the Order Confirmation and are stated net of VAT, unless agreed otherwise.
3.2 Assembly, installation work and facilities are for the Customer’s expense.
3.3 Changes in procurement prices, costs of labour or materials, social charges or government charges, freight costs, insurance premiums or other costs relating to the good or service agreed upon entitle PROPV to change the price.4 PAYMENT
4.1 Before the products are shipped and transferred, PROPV will send the Customer the relevant invoice, which the Customer must pay within 15 days after the date of the invoice, in accordance with PROPV’s instructions, unless agreed otherwise.
4.2 The invoice must be paid in the currency agreed upon, without offset, discount, deduction or suspension for any reason whatsoever.
4.3 In the event that payment for any sum that the Customer owes pursuant to the Agreement is overdue, the Customer is automatically in default and the Customer owes interest to the sum of 1.5% per full or partial month, subject to a minimum of the statutory annual interest as described in Article 119a of Book 6 of the Dutch Civil Code.
4.4 If payment is overdue or in the case of late payment, liquidation, bankruptcy or suspension of payments on the part of the Customer, all the Customer’s payment obligations will become payable on demand and PROPV is authorised to suspend the further performance of the Agreement or to rescind the Agreement, without prejudice to PROPV’s right to seek compensation for its damages.
4.5 If payment is overdue, the Customer will be charged extrajudicial collection costs of five percent (5%) of the amount invoiced, subject to a minimum of EUR 500.
4.6 PROPV is at all times entitled to offset any amounts for which it has a claim on the Customer, whether payable on demand or conditionally, against any claim that the Customer in turn has on PROPV, whether or not it is payable on demand. If possible, PROPV will notify the Customer in advance of the use of its right to offset claims.5 TRANSFER
5.1 Only once payment of the purchase price has been received will PROPV transfer the products, based on CIF (Incoterms 2010), to the location and on the date specified in the order confirmation.
5.2 The time agreed upon for the transfer is in no instance a final deadline, unless explicitly agreed otherwise. If delivery is late, the Customer must give PROPV written notice of default, granting PROPV a reasonable amount of time to as yet fulfil its obligations.
5.3 PROPV is entitled to transfer sold products in batches. If the products are delivered in batches, PROPV is entitled to invoice each batch separately.
5.4 The Customer is obliged to take possession of the purchased products when PROPV offers these to the Customer. This is the case as soon as PROPV has informed the Customer that the products can be picked up or delivered. If the Customer refuses to take possession of the products or fails to provide information or instructions required for delivery, the products will be stored at the Customer’s expense and risk for a maximum of two (2) weeks.
5.5 If the Customer has not taken receipt of the products by the end of the period specified in Article 5.4, or if the Customer announces that it will not take receipt of the products, PROPV’s obligation to transfer the products lapses and the Customer forfeits a penalty, payable on demand, of 10% of the invoiced value of the products concerned.6 RETENTION OF OWNERSHIP
6.1 PROPV will retain ownership of the products it has transferred until the Customer has paid the full purchase price. The products that PROPV has transferred and of which it retains ownership may only be resold or used for the normal conduct of business. While ownership of the products remains with PROPV, the Customer may not give those products in pledge or establish any other right on them.7 LIABILITY
7.1 If any liability arises on PROPV’s part pursuant to this Agreement on grounds of (i) failure to fulfil its obligations under the Agreement, (ii) an act contrary to its guarantee obligations, (iii) an unlawful deed or on any other grounds, PROPV’s liability is limited in accordance with the provisions set out in this Article 7.
7.2 PROPV can only be held liable for alternative compensation, i.e. compensation for a good or service not provided. PROPV is not liable for any other form of damage, including:a. any further compensation for damages, in whatever form;b. indirect damage;c. consequential damage;d. damage caused by loss of income;e. damage caused by delays;f. damage caused by the provision of insufficient cooperation, information or materials by the Customer;g. damage caused by information or advice provided by PROPV.
7.3 With due observance of the provisions set out in Article 7.1, the liability caused by defects is limited to the corresponding amount invoiced and actually paid by the Customer.
7.4 The Customer’s right to seek compensation for damage does not arise until the Customer has notified PROPV in writing of the damage in accordance with the provisions set out in these Terms & Conditions and as soon as is reasonably possible.
7.5 All entitlements to compensation for damage lapse after one (1) year has passed since the event that caused the damage, unless steps are initiated before the end of that period to enable recovery of the claims at law.
7.6 The Customer indemnifies PROPV for any damage that PROPV might incur as a result of third-party claims relating to the products transferred by PROPV.
7.7 Only insofar as PROPV itself, in its capacity as the buyer of the products concerned, is entitled to particular guarantees, indemnifications or other obligations in relation to the products in respect of PROPV’s supplier, will PROPV put forth a reasonable commercial effort to make those guarantees, indemnifications or other obligations in respect of suppliers to the Customer to the extent that PROPV deems appropriate.8 DEFECTS
8.1 Upon delivery, the Customer must examine the products transferred, to determine whether they are compliant with the Agreement, i.e.:a. whether the correct products have been transferred;b. whether the products transferred match what was agreed in terms of volume and quantity;c. whether the products transferred show any visible damage from transport or otherwise; andd. whether the products transferred meet the requirements that may be expected for normal use and/or commercial purposes.
8.2 The Customer must make a record on the delivery note, the invoice and/or the shipping document of any visible defects or shortcomings identified.
8.3 The Customer must notify PROPV of any invisible defects within three (3) business days after delivery, or else after it is possible, within reason, to identify those defects. That notification must be made in writing, must include an explanation and must state the invoice details.
8.4 Any samples/models displayed or supplied only serve as illustrations. The products to be transferred need not correspond to those samples/models. PROPV is not obliged to deliver additional items of products sold previously if PROPV or its suppliers have discontinued production of or the sales programme for those products.
8.5 The Customer must notify PROPV of any complaints about invoices in writing and within eight (8) days after the date of the invoice.
8.6 If the Customer does not report any defects or complaints by the deadlines specified, any subsequent complaint will be disregarded and the Customer’s rights in connection with the defect or complaint will lapse.
8.7 Any claims or arguments based on facts that would justify the position that the products delivered do not match the Agreement lapse after one year has passed since the delivery.9 GUARANTEE
9.1 The guarantee period commences at the moment of delivery, as meant in Article 5, and ends after the period specified in Annex 2 has passed.
9.2 Under the guarantee, for products that do not match the specifications described in Annex 2, free repairs will be provided, replacement products will be provided, the parts needed for repair will be provided or the purchase price will be refunded by PROPV. The remedy chosen is at PROPV’s discretion. In no instance is PROPV responsible for costs relating to dismantling or installation of the products.
9.3 The guarantee does not cover defects in the products resulting from normal wear and tear of from any outside cause.
9.4 The right to the guarantee lapses if the product has been used incorrectly or carelessly, or if any work has been done on or repairs or modifications made to the product without PROPV’s prior written approval, unless that work, those repairs or those modifications are inherent in the utilisation of the product.
9.5 If the Customer invokes a guarantee issued by PROPV, the Customer must allow PROPV 14 days to examine the product concerned at a location chosen by PROPV, in the absence of which the Customer cannot derive any rights from the guarantee unless the acts or omissions on the Customer’s part do not justify a lapse of those rights.
9.6 If PROPV has had defects in the materials and/or construction repaired or replaced the product concerned under the guarantee, PROPV is fully discharged of its guarantee obligations.
9.7 The guarantee described in this Article 9 lapses automatically in the case of bankruptcy, suspension of payments or administration of the supplier in question or if that supplier’s business is discontinued or wound up.10 INTELLECTUAL PROPERTY
10.1 If it established at law that any product transferred by PROPV infringes upon the intellectual property rights of a third party, PROPV will replace the object in question by a product that does not infringe upon those rights, acquire a right of use for that product or take back the object in question in exchange for repayment of the purchase price less commonly accepted depreciation. PROPV will choose the appropriate remedy at its discretion and after having discussed the matter with the Customer
10.2 The Customer is not entitled to a replacement of products infringing upon any intellectual property rights or copyrights of a third party if the Customer has not notified PROPV in writing of that infringement within 30 days after the Customer became aware of the fact.11 RESCISSION OF THE AGREEMENT
If the Customer fails to fulfil any obligation stemming from the Agreement, or fails to fulfil it on time or properly, and in the event of bankruptcy, suspension of payments or administration on the Customer’s part or if the Customer’s business is discontinued or wound up, PROPV is entitled, after having given the Customer written notice of default, to suspend the performance of the Agreement without judicial intervention and without any obligation to pay compensation for damages and without prejudice to any other rights accruing to PROPV. In the situations described above, all claims that PROPV has on the Customer are payable on demand.12 FORCE MAJEURE
12.1 Force majeure is understood to mean circumstances that prevent the performance of the Agreement and that cannot be attributed to PROPV. If and insofar as these circumstances make that performance impossible or unreasonably complicated, this includes strikes at other businesses than that of PROPV, wildcat strikes or political strikes at PROPV’s business, a general shortage of products or services needed for the realisation of the good or service agreed upon, unforeseen delays at suppliers or other third parties on which PROPV depends, general transport problems, fire and government measures, including import and export prohibitions.
12.2 Either party is entitled to rescind the Agreement if the situation of force majeure lasts longer than six (6) months. In that situation, PROPV is not obliged to pay any compensation for damages.13 APPLICABLE LAW/COMPETENT COURT
13.1 All juristic relationships between PROPV and the Customer are governed by the laws of the Netherlands.
13.2 Any disputes that arise in connection with the Agreement will be settled exclusively by the competent section of the District Court of Amsterdam (the Netherlands), unless PROPV, as the claimant or requesting party, chooses for the competent court in the Customer’s domicile.
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