General terms and conditions

General terms and conditions of delivery and payment

General terms and conditions of delivery and payment of Pacor-Pamero BV, established and with registered offices in Ede.

Filed with the Chamber of Commerce and Industry for Central Gelderland, Arnhem, file number 08093567, on March 25, 2008.

General

All Pacor-Pamero BV offers, agreements, and their execution are governed exclusively by these terms and conditions. Any deviations must be expressly agreed upon in writing with Pacor-Pamero BV.
In these terms and conditions, “the other party” means: any (legal) person who has entered into or wishes to enter into an agreement with Pacor-Pamero BV, and in addition to this, its representative(s), authorised representative(s), legal successor(s) and heirs.
The counterparty's own terms and conditions remain unaffected to the extent they do not conflict with these terms and conditions. In that case, the terms and conditions of Pacor-Pamero BV will always prevail, even if priority has otherwise been agreed upon.
If one or more provisions of these terms and conditions are at any time declared null and void or annulled, in whole or in part, the remaining provisions of these terms and conditions will remain fully applicable. Pacor-Pamero BV and the other party will then consult with each other to agree on new provisions to replace the null and void or annulled provisions, taking into account the purpose and intent of the original provisions as much as possible.
If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation should be in accordance with the spirit of these provisions.
If a situation arises between the parties that is not covered by these general terms and conditions, then this situation must be assessed in accordance with the spirit of these general terms and conditions.
If Pacor-Pamero BV does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Pacor-Pamero BV in any way loses the right to demand strict compliance with the provisions of these terms and conditions in other cases.

Offers

All offers made by Pacor-Pamero BV, in whatever form, are without obligation, unless expressly stated otherwise.
Pacor-Pamero BV cannot be held to its quotations or offers if the other party could reasonably understand that the quotations or offers, or a part thereof, contain an obvious error or typographical error.
If an offer is accompanied by budgets, plans, catalogs, or other documents, these remain the property of Pacor-Pamero BV at all times and must be returned to Pacor-Pamero BV upon first request. They may not be reproduced or made available to third parties without the permission of Pacor-Pamero BV.
Sending offers and/or (other) documentation does not obligate Pacor-Pamero BV to accept an order. Pacor-Pamero BV will notify the other party of non-acceptance as soon as possible, but in any case within 14 days.
Pacor-Pamero BV reserves the right to refuse orders without stating reasons or to deliver cash on delivery.

Agreement

Except as provided below, an agreement with Pacor-Pamero BV will only be concluded after Pacor-Pamero BV has accepted or confirmed an order in writing, with the date of the confirmation being decisive. The order confirmation is deemed to accurately and completely reflect the agreement, unless the other party immediately objects in writing.
Any additional agreements or changes made later will only be binding on Pacor-Pamero BV if they have been confirmed in writing by Pacor-Pamero BV.
For transactions for which, due to their nature and size, no quotation or order confirmation is sent, the invoice is deemed to accurately and completely reflect the agreement, unless a complaint is made within 5 days.
Each agreement is entered into by Pacor-Pamero BV under the
condition precedent that the other party – at the sole discretion of Pacor-Pamero BV – appears sufficiently creditworthy for the financial fulfilment of the agreement.
Pacor-Pamero BV is entitled, at or after entering into the agreement, before (further) performance, to demand security from the other party that both the down payment and other obligations will be met.
Pacor-Pamero BV is authorized, if Pacor-Pamero BV deems this necessary or desirable for the correct execution of the order placed by Pacor-Pamero BV and after consultation with the other party, to engage others in the execution of the agreement, the costs of which will be charged to the other party in accordance with the price quotations provided.
If the agreement is amended, including a supplement, Pacor-Pamero BV is entitled to implement this only after it has been approved by the authorized person within Pacor-Pamero BV and the other party has agreed to the price and other conditions specified for the implementation, including the time at which it will be implemented.
Failure to implement the amended agreement, or failure to implement it immediately, does not constitute a breach of contract by Pacor-Pamero BV, nor does it constitute grounds for the other party to terminate the agreement. Without being in default, Pacor-Pamero BV may refuse a request to amend the agreement if this could have consequences in terms of quality and/or quantity, for example, for the work to be performed or the goods to be delivered in that context.
If the other party fails to properly fulfil its obligations to Pacor-Pamero BV, the other party will be liable for all direct and/or indirect damage (including costs) suffered by Pacor-Pamero BV.
Pacor-Pamero BV is authorized to suspend the fulfillment of its obligations or to terminate the agreement if:
The other party fails to fulfil its obligations under the agreement, fails to fulfil them in full or fails to fulfil them on time; after the agreement has been concluded, Pacor Pamero BV becomes aware of circumstances that give good reason to fear that the other party will not fulfil its obligations; - the other party was requested to provide security for the fulfilment of its obligations under the agreement upon conclusion of the agreement and this security is not provided or is insufficient; - If, due to a delay on the part of the other party, Pacor-Pamero BV can no longer be expected to fulfil the agreement under the originally agreed conditions.
Furthermore, Pacor-Pamero BV is entitled to terminate the agreement if circumstances arise that are of such a nature that compliance with the agreement is impossible or if other circumstances arise that are of such a nature that Pacor-Pamero BV cannot reasonably be expected to maintain the agreement unchanged.
If the agreement is terminated, Pacor-Pamero BV's claims against the other party become immediately due and payable. If Pacor-Pamero BV suspends fulfillment of its obligations, Pacor-Pamero BV retains its rights under the law and the agreement.
If Pacor-Pamero BV suspends or dissolves the agreement, Pacor-Pamero BV is in no way obliged to compensate for any damage or costs incurred in any way as a result.
If the termination is attributable to the other party, Pacor-Pamero BV is entitled to compensation for the damage, including costs, directly and indirectly incurred as a result.
If the other party fails to fulfil its obligations arising from the agreement and this failure justifies termination, Pacor-Pamero BV is entitled to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any damages or compensation, while the other party, on account of breach of contract, is obliged to pay damages or compensation.
If the agreement is terminated prematurely by Pacor-Pamero BV, Pacor-Pamero BV will, in consultation with the other party, ensure that any work still to be performed is transferred to third parties. This applies unless the termination is attributable to the other party. If the transfer of the work entails additional costs for Pacor-Pamero BV, these will be charged to the other party. The other party is obligated to pay these costs within the specified period, unless Pacor-Pamero BV indicates otherwise.

Prices

Unless otherwise stated, Pacor-Pamero BV's prices are: -based on delivery from the company, warehouse, or other storage location; -exclusive of VAT; -exclusive of special packaging costs; -stated in euros; any exchange rate fluctuations will be passed on.
In the event of an increase in one or more of the cost price factors, Pacor-Pamero BV is entitled to increase the order price accordingly; all this in accordance with any existing legal regulations, provided that any known future price increases must be stated in the order confirmation.
If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% and occurs within three months after the conclusion of the agreement, then only the other party who is entitled to rely on Title 5, Section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by a written statement, unless Pacor-Pamero BV is then still prepared to perform the agreement on the basis of the originally agreed upon, or if the price increase results from an authority or an obligation resting on Pacor-Pamero BV under the law or if it has been agreed that the delivery will take place more than three months after the purchase.

Delivery

From the moment the purchase agreement is concluded, the purchased goods are at the other party's risk. Unless otherwise agreed, delivery will be made to the other party's home/business. Free delivery will only take place if and insofar as this has been agreed between Pacor-Pamero BV and the other party and is indicated on the invoice or otherwise.
The counterparty is obliged to check the delivered goods and/or the packaging immediately upon delivery, but in any case within 3 working days, for any shortages and/or damage, or to carry out this check after notification from Pacor-Pamero BV that the goods are available to the counterparty.
Any shortages and/or damage to the delivered goods and/or their packaging present upon delivery must be noted by the other party on the delivery note, invoice, and/or shipping documents. Failing to do so, the other party is deemed to have approved the delivery. Complaints regarding this matter will no longer be considered.
Pacor-Pamero BV is entitled to deliver in parts (partial deliveries), which Pacor-Pamero BV can invoice separately.
Delivery times are always approximate, unless expressly agreed otherwise in writing.
If a deadline has been agreed upon or specified for the completion of certain work or for the delivery of certain items, this is never a strict deadline. If a deadline is exceeded, the other party must therefore notify Pacor-Pamero BV in writing of the default. Pacor-Pamero BV must be given a reasonable period to still fulfill the agreement.
If the goods have not been collected by the other party after the delivery time has expired, they will be stored at his disposal, at his expense and risk.
On-call orders must be scheduled within 2 (two) months and accepted within 3 (three) months. Otherwise, Pacor-Pamero BV is entitled to deliver the goods to the other party after notification, or to store them at their expense and risk.
Shipping costs of €15.00 will be charged upon delivery.

Cancellation

If the other party wishes to cancel an agreement that has been concluded, it must notify Pacor-Pamero BV by registered letter. Pacor-Pamero BV is then entitled to retain 10% of the
order price (incl. VAT) as cancellation costs, without prejudice to Pacor-Pamero BV's right to full compensation.

Transport/risk

Unless the other party provides Pacor-Pamero BV with further instructions, the method of transport, shipping, packaging, etc., will be determined by Pacor-Pamero BV in accordance with its best interests. Unless otherwise agreed, the other party assumes all risks in this regard, including any fault or negligence on the part of the carrier.
Any specific wishes of the counterparty regarding transport/shipment will only be carried out if the counterparty has declared that it will bear the additional costs thereof.
Pacor-Pamero BV is entitled to charge a fee for sustainable packaging materials, which will be stated on the invoice. If Pacor-Pamero BV charges such a fee, it will be deducted from the original amount after the product has been returned undamaged.

Force majeur

Pacor-Pamero BV is not obliged to fulfil any obligation towards the other party if Pacor-Pamero BV is prevented from doing so as a result of a circumstance that is not attributable to fault, and for which Pacor-Pamero BV is not responsible under the law, a legal act or generally accepted views.
“Force majeure” is defined as: any circumstance beyond the control of the parties or any unforeseeable circumstance as a result of which the other party can no longer reasonably be expected to fulfil the agreement.
If, in the opinion of Pacor-Pamero BV, the force majeure is of a temporary nature, Pacor-Pamero BV has the right to suspend the performance of the agreement until the circumstance that constitutes the force majeure no longer applies.
If, in the opinion of Pacor-Pamero BV, the force majeure situation is of a permanent nature, the parties may make arrangements regarding the termination of the agreement and the associated consequences.
Pacor-Pamero BV is entitled to demand payment for services rendered in the execution of the relevant agreement before the circumstance causing force majeure became apparent.
The party that believes it is (or will be) in a situation of force majeure must immediately notify the other party thereof.

Liability

Pacor-Pamero BV excludes all liability to the extent that this is not regulated by law.
The liability of Pacor-Pamero BV will never exceed the total amount of the order in question.
The liability of Pacor-Pamero BV is in any case limited to the amount of the payment from its insurer in the event in question.
Except for the generally applicable legal rules of public order and good faith, Pacor-Pamero BV is not liable for any compensation for damage of any nature whatsoever, direct or indirect, including business damage, to movable or immovable property, or to persons, either to the other party or to third parties.
In any case, Pacor-Pamero BV is not liable for damage that has arisen or been caused by the use of the delivered goods or by their unsuitability for the purpose for which the other party purchased them.
By the mere receipt of the delivered goods by or on behalf of the other party, Pacor-Pamero BV is indemnified against all possible claims by the other party and/or third parties for payment of damages, regardless of whether the damage arose as a result of composition and/or manufacturing errors or due to any other cause.

Indemnification

The counterparty shall indemnify Pacor-Pamero BV against any claims by third parties who suffer damage in connection with the performance of the agreement and the cause of which is attributable to parties other than Pacor-Pamero BV.
If Pacor-Pamero BV is held liable by third parties for this reason, the other party is obligated to assist Pacor-Pamero BV both in and out of court and to immediately take all steps that may be expected of them in that case. Should the other party fail to take adequate measures, Pacor-Pamero BV is entitled, without notice of default, to take such measures itself. All costs and damages incurred by Pacor-Pamero BV and third parties as a result thereof shall be borne entirely by the other party.

Intellectual property

Pacor-Pamero BV reserves the rights and powers to which it is entitled under the Copyright Act and other intellectual property laws and regulations. Pacor-Pamero BV has the right to use the knowledge acquired by Pacor-Pamero BV through the performance of an agreement for other purposes as well, provided that no strictly confidential information of the other party is disclosed to third parties.

Guarantees

The goods to be delivered by Pacor-Pamero BV meet the usual requirements and standards that can reasonably be expected of them at the time of delivery and for which they are intended for normal use in the Netherlands. The warranty stated in this article applies to goods intended for use within the Netherlands. For use outside the Netherlands, the other party must verify whether the goods are suitable for use there and meet the applicable conditions. In that case, Pacor-Pamero BV may impose other warranty and other conditions regarding the goods to be delivered or the work to be performed.
The warranty referred to in paragraph 1 of this article is valid for a period of one year after delivery, unless the nature of the delivered goods dictates otherwise or the parties have agreed otherwise. If the warranty provided by Pacor-Pamero BV concerns an item manufactured by a third party, the warranty is limited to that provided by the manufacturer of the item, unless stated otherwise.
Any form of warranty shall lapse if a defect arises as a result of or results from improper or inappropriate use thereof, or use after the expiration date, incorrect storage or maintenance thereof by the other party and/or by third parties if, without the written permission of Pacor-Pamero BV, the other party or third parties have made or attempted to make changes to the item, other items have been attached to it that should not be attached to it, or if it has been processed or edited in a manner other than that prescribed. The other party is also not entitled to claim under the warranty if the defect has arisen due to or is the result of circumstances beyond Pacor-Pamero BV's control, including weather conditions (such as, but not limited to, extreme rainfall or temperatures), etc.
After the warranty period expires, all costs for repair or replacement, including administration, shipping, and call-out charges, will be charged to the other party.
By way of exception to the statutory limitation periods, the limitation period for all claims and defenses against Pacor-Pamero BV and third parties involved by Pacor-Pamero BV in the performance of an agreement is one year.

Advertisements

Any complaints will only be considered by Pacor-Pamero BV if they reach Pacor-Pamero BV directly in writing within 14 days of delivery of the relevant service, with a precise description of the nature and grounds of the complaint.
Complaints about invoices must also be submitted in writing within 14 days of the invoice date.
After this period expires, the other party is deemed to have approved the delivered goods or the invoice. Complaints will then no longer be considered by Pacor-Pamero BV.
Minor deviations in quality, colour and model never give right to complaints.
If the complaint is found to be justified by Pacor-Pamero BV, Pacor-Pamero BV is only obliged to subsequently deliver the agreed performance.
Only if and to the extent that the complaint is found to be justified will this suspend the counterparty's payment obligation until the complaint has been settled.
Returns of delivered goods may only be made after prior written consent from Pacor-Pamero BV, under conditions to be determined by Pacor-Pamero BV.
If it is established that a complaint is unfounded, then the costs incurred as a result, including the investigation costs incurred by Pacor-Pamero BV, will be borne in full by the other party.

Retention of title

Delivered goods remain the property of Pacor-Pamero BV until the moment at which deliveries and work already performed or still to be performed under the agreement, including interest and costs, have been paid by the other party. In the event of suspension of payment, bankruptcy, suspension of payment, liquidation of the other party, or death if the other party is a natural person, Pacor-Pamero BV is entitled to cancel the order in whole or in part without notice of default or judicial intervention.
Cancel and reclaim the unpaid portion of the delivered goods. Cancellation and reclaim do not affect Pacor-Pamero BV's right to compensation for loss or damage. In these cases, any claim Pacor-Pamero BV has against the other party will be immediately and fully due and payable.
The goods may be resold or used by the other party in the course of its normal business operations, but may not be pledged or serve as security for a claim by a third party.
To secure the correct payment of all claims of Pacor-Pamero BV, regardless of the nature thereof, Pacor-Pamero BV also obtains a non-possessory pledge – upon the creation of the claim – on all goods in which the substances supplied by Pacor-Pamero BV are incorporated or of which they form a part. The order signed by the other party and the subsequent written acceptance by Pacor-Pamero BV are considered a private deed as defined in the Act.
The counterparty must always do everything that can reasonably be expected of them to safeguard the ownership rights of Pacor-Pamero BV.
If third parties seize goods delivered under retention of title or wish to establish or assert rights thereto, the other party is obliged to inform Pacor-Pamero BV thereof immediately.
The counterparty undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to maintain the policy of this
To provide Pacor-Pamero BV with the insurance for inspection upon first request. In the event of a payment under the insurance, Pacor-Pamero BV is entitled to these funds. To the extent necessary, the other party undertakes
undertakes in advance to cooperate with Pacor-Pamero BV in everything that may be (or appear to be) necessary or desirable in this context.
In the event that Pacor-Pamero BV wishes to exercise its ownership rights as indicated in this article, the other party hereby grants unconditional and irrevocable permission in advance to Pacor-Pamero BV and any third parties designated by Pacor-Pamero BV to enter all places where our property is located and to take back such items.

Payment

Unless otherwise agreed in writing, payment must be made in cash upon delivery without any discount, or by deposit or transfer to a bank or giro account designated by Pacor-Pamero BV within 30 days of the invoice date. If payment is made within 16 days of the invoice date, a 1% discount may be deducted. The value date indicated on Pacor-Pamero BV bank/giro statements is decisive and is therefore considered the payment date.
All payments made by the counterparty will primarily serve to settle any interest and collection costs incurred by Pacor-Pamero BV and subsequently to settle the oldest outstanding invoices.
Pacor-Pamero BV may, without defaulting, refuse an offer of payment if the other party specifies a different order for the allocation of the payment. Pacor-Pamero BV may refuse full repayment of the principal if the accrued and current interest and collection costs are not also paid.
The counterparty is never entitled to offset any amount owed by it to Pacor-Pamero BV.
Objections to the amount of an invoice do not suspend the payment obligation. The counterparty who is not entitled to invoke Section 6.5.3 (Articles 231 through 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
In case the other party:

a. is declared bankrupt, surrenders his estate, files a request for suspension of payments, or has all or part of his property seized,
b. dies or is placed under guardianship,
c. fails to fulfil any obligation imposed on him by law or by these conditions,
d. fails to pay an invoice amount or part thereof within the specified period, Pacor-Pamero BV shall, by the mere occurrence of one of the aforementioned circumstances, be entitled to either terminate the agreement or demand payment in full of any amount owed by the other party for services provided by Pacor-Pamero BV, immediately and without any warning or notice of default. This does not prejudice Pacor-Pamero BV's right to compensation for costs, damages, and interest.

Interest and costs

If payment has not been made within the period stated in the previous article, the other party will be in default by operation of law and will owe interest of 1% per (part of a) month on the outstanding amount from the invoice date.
All judicial and extrajudicial costs incurred will be borne by the other party. Extrajudicial collection costs amount to at least 15% of the amount owed by the other party, including the aforementioned interest.

Applicable law

All offers, agreements and their execution are exclusively governed by Dutch law.

Disputes

All disputes, including those considered as such by only one party, arising from or relating to the agreement to which these terms and conditions apply or the terms and conditions themselves and their interpretation or implementation, both of a factual and legal nature, shall be decided by the competent civil court within whose jurisdiction the registered office of Pacor-Pamero BV is located, unless the subdistrict court has jurisdiction.
Pacor-Pamero BV is nevertheless entitled to have the dispute settled through arbitration or mediation, in which case Pacor-Pamero BV will notify the other party in writing. The other party will then have one month to opt for settlement by the civil court.
In the event the dispute is settled by arbitration, three arbitrators shall judge as good men in equity.
The appointment of the arbitrators shall take place either by each of the parties appointing one and the third being appointed by the two arbitrators already appointed together or by the President of the Chamber of Commerce
appoints this. The costs of the arbitrators and their fees shall be borne by the parties as determined by the arbitrators. Unless otherwise provided above, the provisions of Book IV of the Code of Civil Procedure shall apply.
If the dispute is settled by mediation, a mediator registered with the Netherlands Mediation Institute will be appointed by the parties.

Changes to terms and conditions

The version applicable at the time the legal relationship with Pacor-Pamero BV was established always applies.
The Dutch text of the general terms and conditions is always decisive for their interpretation.